Legislature(1999 - 2000)

04/17/2000 02:05 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SENATE JOINT RESOLUTION NO. 27 am                                                                                             
     Proposing  amendments to the  Constitution of  the State                                                                   
     of   Alaska  relating   to   revisions   of  the   state                                                                   
     constitution and  providing that a court  may not change                                                                   
     language  of  a  proposed  constitutional  amendment  or                                                                   
Co-Chair Therriault provided members  with proposed committee                                                                   
substitute, work draft 1-LS0078\N, 4/11/00 (copy on file).                                                                      
SENATOR  DAVE  DONLEY,  SPONSOR   spoke  in  support  of  the                                                                   
legislation. He noted  that SJR 27 amends Article  XIII, sec.                                                                   
1 of the Alaska State Constitution  by making it possible for                                                                   
the legislature  to place constitutional   revisions  as well                                                                   
as amendments before Alaskans  for a vote. SJR 27 also adds a                                                                   
new section  to Article  XIII, which  would prohibit  a court                                                                   
from  changing the  wording of  constitutional amendments  or                                                                   
revisions  proposed  by  the  legislature  or  constitutional                                                                   
Senator Donley  maintained that the legislation  corrects the                                                                   
problem  created  by Bess  v.  Ulmer.  The  Bess case  was  a                                                                   
challenge  to the  proposed constitutional  amendment on  the                                                                   
definition  of  marriage, approved  in  1998.  On appeal  the                                                                   
Supreme Court  ruled that the  legislature is not able  to do                                                                   
revisions  to  the  Constitution   and  adopted  a  test  for                                                                   
revisions.  He  maintained that  the  test of  "revision"  is                                                                   
onerous.   He   observed  that   the   state   constitutional                                                                   
convention debated the definition of revision to no avail.                                                                      
Senator Donley  noted that  the Court  based its decision  in                                                                   
part  on   a  initiative   to  the   state  of   California's                                                                   
Constitution.  He argued that  the California initiative  was                                                                   
more substantial. The Court removed  a legislatively proposed                                                                   
constitutional amendment from  the ballot on the Amendment to                                                                   
Limit  Prisoners'  Rights  and  changed the  wording  of  the                                                                   
Definition of  Marriage Amendment.  He maintained  that there                                                                   
is no  legal precedent for  a court to  modify language  of a                                                                   
constitutional  amendment  proposed  by  elected  legislators                                                                   
before it was placed on the ballot  for a vote of the people.                                                                   
He   maintained   that   the   court   should   not   propose                                                                   
constitutional amendments.                                                                                                      
The   proposed   committee   substitute   would   allow   the                                                                   
legislature to do  revisions, but revisions would  have to be                                                                   
on  a single  subject.  This  would  be consistent  with  the                                                                   
existing constitutional provision for legislation.                                                                              
Senator Donley  provided members with a  memorandum, Analysis                                                                   
of Bess  v. Ulmer  - Revisions  vs. Amendments dated  4/11/00                                                                   
from legislative counsel (copy on file). He quoted page 7.                                                                      
Senator   Donley  observed   that  there   have  been   other                                                                   
constitutional amendments, which  would not have met the Bess                                                                   
test. He  maintained that  the right  to privacy and  limited                                                                   
entry amendments  would have failed  the Bess test.  He added                                                                   
that the  question of subsistence  would also fail  under the                                                                   
Bess test because of the number  of provisions affected under                                                                   
the  Constitution, even  though it  is a  single subject.  He                                                                   
concluded  that without  the legislation  everything done  on                                                                   
the constitutional realm comes into question.                                                                                   
Vice  Chair  Bunde  MOVED to  ADOPT  work  draft  1-LS0078\N,                                                                   
4/11/00. There being NO OBJECTION, it was so ordered.                                                                           
DALE  BONDURANT,   KENAI  testified  via   teleconference  in                                                                   
opposition   to   the   legislation.   He   maintained   that                                                                   
constitutional  amendments  are   affected  by  politics.  He                                                                   
maintained  that  court  are  not  as  subject  to  political                                                                   
pressures. There  are laws that are not judicially  valid. He                                                                   
suggested that judicial comments  on the constitutionality be                                                                   
open. Citizens  want to  know how  the judicial branch  views                                                                   
constitutional  amendments.  He  maintained  that no  one  is                                                                   
above the law, not even the legislature.                                                                                        
Representative Phillips  questioned if it is  appropriate for                                                                   
the courts  to decide what question  goes on the  ballot. Mr.                                                                   
Bondurant  responded that  the  public would  have to  suffer                                                                   
unconstitutional amendments if  the courts are not allowed to                                                                   
Representative  Grussendorf   observed  that  the   court  is                                                                   
concerned with the curtailing  of rights not the expansion of                                                                   
rights.  The prisoners'  rights were being  curtailed  by the                                                                   
Co-Chair Therriault  questioned if an expansion  that touches                                                                   
on  many  aspects  of  the  Constitution  would  be  allowed.                                                                   
Representative Grussendorf  observed that there  would not be                                                                   
a challenge unless rights were reduced.                                                                                         
Senator Donley maintained that  the legislation does not take                                                                   
away the court's right to address  the issue. The court would                                                                   
not have  the right  to modify the  language, but  they could                                                                   
take the amendment  off the ballot. He observed  that limited                                                                   
entry amendment took rights away  from the general population                                                                   
and gave  them to a limited  number of Alaskans.  Subsistence                                                                   
also takes rights away from the  general population and gives                                                                   
a higher  priority to other  Alaskans. These would  be called                                                                   
into questioned by the criteria under Bess.                                                                                     
Vice Chair Bunde  summarized that the legislation  creates an                                                                   
all or nothing situation. The  court could not chose bits and                                                                   
pieces of a constitutional question  to put on the ballot. He                                                                   
maintained that the  expansion of rights for  one group often                                                                   
results in the loss of rights by others.                                                                                        
Senator  Donley responded  that the  legislation would  allow                                                                   
the Court to chose  items that would be allowed  on a ballot.                                                                   
He  added   that  single  subject   criteria  is   easier  to                                                                   
understand  than a  qualitative or  quantitative standard.  A                                                                   
single subject standard is a logical  expansion to narrow the                                                                   
problem of amendment versus revision.                                                                                           
Representative  Grussendorf  referred  to limited  entry.  He                                                                   
observed that sustained yield  and protection of the resource                                                                   
were also involved.                                                                                                             
Representative  Austerman MOVED  to report  HCS SJR  27 (FIN)                                                                   
out of  Committee with  the accompanying  fiscal note.  There                                                                   
being NO OBJECTION, it was so ordered.                                                                                          
SJR  27   am  was   REPORTED  out   of  Committee   with  "no                                                                   
recommendation" and  with a fiscal impact note  by the Office                                                                   
of the Governor, published 1/24/00.                                                                                             

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