Legislature(1999 - 2000)
04/17/2000 02:05 PM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 revision. 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 convention. 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 comment. 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 amendment. 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.