Legislature(1999 - 2000)

04/10/2000 01:28 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SJR 27-CONST. AM: REVISIONS OF CONSTITUTION                                                                                   
CHAIRMAN KOTT announced  that the next order of  business would be                                                              
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.                                                                    
Number 0871                                                                                                                     
SENATOR DAVE  DONLEY, Alaska State  Legislature, testified  as the                                                              
sponsor  of  SJR  27.   He  explained  that  SJR  27,  a  proposed                                                              
constitutional amendment,  would do two  things.  First,  it would                                                              
allow  the  legislature  to  propose what  the  court  has  termed                                                              
"revisions" to the  state constitution to the  voters.  Currently,                                                              
the   word  "revisions"   appears   once  in   the  Alaska   State                                                              
Constitution  and that  is  found in  the  section addressing  the                                                              
constitutional conventions.  Furthermore,  the word "revisions" is                                                              
not really  defined.  He pointed  out that this became  a question                                                              
in the  Bess v. Ulmer  case in relation  to the prisoners'  rights                                                            
proposed constitutional  amendment.   In that situation  the court                                                              
found it to be a revision and a imprecise  definition was given in                                                              
regard  to what a  revision is  versus an  amendment.   Therefore,                                                              
this resolution would clarify that  the legislature would have the                                                              
power to perform revisions.                                                                                                     
SENATOR DONLEY  turned to the second  thing that SJR 27  would do.                                                              
This  resolution  would  prohibit   the  court  from  altering  or                                                              
changing  the  language  of  an  amendment  or  revision  that  is                                                              
proposed  by the legislature  or by  a constitutional  convention.                                                              
In the Bess v.  Ulmer case the court modified the  language of the                                                            
definition  of marriage,  which  was the  first  time [the  court]                                                              
modified the language of a constitutional amendment.  He said:                                                                  
     While  the  court  may  maintain  the  power  to  remove                                                                   
     something  from the  ballot,  it's very  problematic  to                                                                   
     have the  court modify the  language of something  prior                                                                   
     to  a  vote   of  the  people  because   obviously,  the                                                                   
     constitution  reserves the  power  for determining  what                                                                   
     should be  placed before the  people to the  legislative                                                                   
     branch.  Since  this requires a two-thirds  vote of both                                                                   
     bodies, how would the court  ever know that the modified                                                                   
     language  the court  has  substituted  for the  original                                                                   
     language  would've gotten the  required two-thirds  vote                                                                   
     under the constitution.                                                                                                    
SENATOR   DONLEY   said   the  courts   shouldn't   be   modifying                                                              
constitutional  amendments.   He  pointed  out  that "we"  have  a                                                              
statutory provision  for severability,  which allows the  court to                                                              
modify statutes.   However, that  doesn't apply to  resolutions or                                                              
amendments  to the constitution.   He  noted that  he has  a legal                                                              
opinion on that matter from Legislative  Legal Services.  In order                                                              
to be more precise on revisions,  Senator Donley suggested that on                                                              
page 1, line  6, the language "single subject  revisions" could be                                                              
added.  He explained his belief that  [the legislature] should not                                                              
do multiple  subject amendments.   Such  language would  allow the                                                              
prisoners' rights amendment; although  that would affect more than                                                              
one section of the constitution, it would be a single subject.                                                                  
SENATOR  DONLEY informed  the committee  that a  definition of  an                                                              
amendment versus  a revision  that appeared in  Bess v.  Ulmer was                                                            
referred to, in the majority opinion,  as a hybrid test.  However,                                                              
the  concurring  opinion,  which   was  correct  in  his  opinion,                                                              
criticized [that definition]  as being confusing and  not really a                                                              
hybrid test.   He  said that it  was really the  same test  as the                                                              
California Supreme  Court determined in the case  that Bess relied                                                            
upon in  general.  Senator Donley  explained, "In that  case, what                                                              
the  California Supreme  Court, (indisc.)  which  was restated  in                                                              
Bess, is   that amendments become  revisions when they  are either                                                            
quantitatively  or qualitatively  more  complex."   Therefore,  he                                                              
reiterated his  belief in the importance  of voters to be  able to                                                              
do  single-subject   amendments to  the  constitution as  it is  a                                                              
healthy process.                                                                                                                
SENATOR DONLEY  pointed out that  one danger of the  Bess decision                                                            
is that  it places  anything [the  legislature] does into  serious                                                              
question   as  to   whether  it   meets  the   vague  Bess   test.                                                            
Furthermore, it allows  the courts to "play politics  to a maximum                                                              
degree"  and drives  the  fuel  for a  constitutional  convention,                                                              
which he  believes would be  a mistake.   He felt that  the voters                                                              
amending the constitution  is a much more measured  process than a                                                              
constitutional convention.  Senator  Donley remarked that there is                                                              
a growing  constitutional convention  movement in  the state.   He                                                              
noted that he has  stressed to this group the need  to resolve the                                                              
Bess  question before  pushing  for a  constitutional  convention,                                                            
which could go in many different directions.                                                                                    
Number 1263                                                                                                                     
SENATOR  DONLEY related  his belief that  the court  overstretched                                                              
its judicial  authority on amending  the actual language  proposed                                                              
by the legislature.  He further believes  that the court stretched                                                              
the argument in  regard to the specific proposition  before it, in                                                              
the  court's  reliance  on the  California  case  that  overturned                                                              
Proposition  115.   The  bill  packet  should  include a  copy  of                                                              
Proposition  115, which  is distinguishable  on its  merits.   The                                                              
proposal in Alaska, the prisoners'  rights, was determined to be a                                                              
revision.   The  proposal in  Alaska  was a  short single  subject                                                              
proposal which  was proposed  by the  legislature.  In  California                                                              
Proposition 115 was  a lengthy initiative to amend  the California                                                              
State Constitution;  it was a wholesale rewrite  of their criminal                                                              
rights.    He  felt  the  California   proposal  could  have  been                                                              
determined  by the  courts to  be a  revision as  it impacts  many                                                              
different elements of the California  criminal code.  Furthermore,                                                              
the California  proposal was an  initiative process which  is very                                                              
different  than   an  elected  body  proposing   a  constitutional                                                              
SENATOR DONLEY noted  that the bill packet should  also include an                                                              
analysis from the attorney who represented  the legislature in the                                                              
case.  Furthermore,  there was testimony taken on  the Senate side                                                              
from a variety  of views which suggest that something  needs to be                                                              
done  about the  Bess case.   Senator  Donley did  not see how  to                                                            
justify  the right  to privacy  amendment adopted  by the  voters;                                                              
under  the Bess  case he  didn't think  it [the  right to  privacy                                                            
amendment]  would   be  allowed   as  it  sweeps   throughout  the                                                              
constitution  and  it  would  fail  in the  Bess  case  under  the                                                            
qualitative and quantitative analysis.   Furthermore, he suggested                                                              
that limited  entry  would probably  fail under  the Bess test  as                                                            
well.   These are important  amendments that  leave one  to ponder                                                              
whether  if someone  wanted to  challenge  those amendments  under                                                              
Bess, how the court would respond to that.                                                                                    
Number 1414                                                                                                                     
REPRESENTATIVE  CROFT  inquired   as  to  who  in  the  Bess  case                                                            
suggested to  the court  that it could  sever the final  sentence,                                                              
which  is  mentioned   by  Attorney  Clarkson  in   his  materials                                                              
[included in  the bill packet]  as well  as the court  in footnote                                                              
SENATOR DONLEY pointed  out another problem with the  Bess case in                                                            
that the court  adopted simultaneous briefing.   He explained that                                                              
the Bess case  was about the definition of  marriage, specifically                                                            
the  lawsuit  was  filed  to remove  the  definition  of  marriage                                                              
question  from the  ballot.   One of  the arguments  in the  reply                                                              
brief -  which came at  the same time  such that the  defenders of                                                              
the constitutional amendments never  had a chance to respond - was                                                              
that  if  all three  of  the  proposed  constitutional  amendments                                                              
(redistricting, the definition of  marriage and prisoner's rights)                                                              
were considered  together as  an entity,  they would constitute  a                                                              
revision.  Therefore, the court shouldn't  allow all three of them                                                              
on the ballot at the same time.   The superior court rejected that                                                              
SENATOR DONLEY pointed  out that this was not followed  up nor was                                                              
it a point on  appeal.  Therefore, the parties had  no notice that                                                              
the courts  would even  take this  issue up.   However,  the court                                                              
took it up  on its own volition  and ruled, which resulted  in the                                                              
removal  of prisoners'  rights from  the ballot  and amending  the                                                              
definition of marriage.  Senator Donley specified:                                                                              
     So,  it  was  never  even  properly  before  the  court,                                                                   
     procedurally,  and it  certainly was  never allowed  the                                                                   
     type of briefing that a constitutional  question of this                                                                   
     magnitude and  a question of  separation of  powers like                                                                   
     this should be entitled to in the judicial process.                                                                        
SENATOR DONLEY,  in response to  Representative Croft,  noted that                                                              
Attorney Clarkson,  in response to  a question in  oral arguments,                                                              
said that he  felt they could remove that sentence  if they wanted                                                              
to.    However,  Senator  Donley   felt  that  he  was  in  error,                                                              
especially   since  the   severability   clause  doesn't   address                                                              
resolutions or  constitutional amendments but  rather specifically                                                              
speaks to statutes.                                                                                                             
REPRESENTATIVE  ROKEBERG   asked  if  Senator  Donley   wanted  an                                                              
SENATOR  DONLEY remarked  that he  had been trying  to focus  this                                                              
resolution,  which could  be achieved  with the  insertion of  the                                                              
language "single  subject revisions" on  page 1, line 6.   He felt                                                              
that  such a  change would  provide people  with much  reassurance                                                              
that wholesale changes are not being  attempted.  He expressed his                                                              
belief  that single  subjects are  appropriate for  the voters  to                                                              
decide.   However,  he recognized  that this  opens it  up to  the                                                              
court's interpretation as to what a single subject is.                                                                          
Number 1597                                                                                                                     
REPRESENTATIVE   ROKEBERG  commented   that   it  seems   mutually                                                              
exclusive because how could a single subject be a revision.                                                                     
SENATOR  DONLEY explained  that the  test that  was adopted  was a                                                              
qualitative  and   a  quantitative   test.    He   specified  that                                                              
quantitative refers to the number  of sections of the constitution                                                              
that it may impact.  For example,  subsistence is a single subject                                                              
and  by itself  under  the  Bess test  it  is clearly  a  revision                                                            
because it  affects fundamental human  rights and it  also affects                                                              
multiple sections of the constitution.   Therefore, it fails under                                                              
both levels,  but it remains a  single subject and he  believes it                                                              
appropriate for  the voters to have  the opportunity to  make that                                                              
REPRESENTATIVE CROFT  said he doesn't believe it  bears the weight                                                              
being put on it.  There can be single-subject  changes that are so                                                              
fundamental  to the constitutional  structure  that they  can't be                                                              
done by  amendment.  He  stated, "In effect,  we are conceding   -                                                              
when Senator  Donley talks about  a single subject  revision being                                                              
alright - that there are things that  are properly read out of our                                                              
power to amend; they're things that are beyond amendment."                                                                      
REPRESENTATIVE CROFT  continued.  He said he understood  that what                                                              
Senator Donley  would characterize as multiple  subject amendments                                                              
might be beyond amendment.  However,  there are single issues that                                                              
are so comprehensive  that they are no longer  an amendment; those                                                              
usually address capping or changing  a variety of different rights                                                              
and  thus  change  the fundamental  structure  of  rights  or  the                                                              
relationship between the three branches of government                                                                           
REPRESENTATIVE  CROFT said  he did  not believe  that privacy,  by                                                              
adding a single  right in addition  to others, would be  much of a                                                              
challenge  under Bess.   Although  he believes  subsistence is  an                                                            
interesting  issue, he  believes it  would survive.   The Bess  v.                                                            
Ulmer and  the California  line of  cases were   directed  at what                                                            
were very  comprehensive amendments and  he thought the  court was                                                              
correct in both.                                                                                                                
REPRESENTATIVE CROFT  related his belief that Senator  Donley does                                                              
have  a point  in Section  2 in  that it  was Attorney  Clarkson's                                                              
mistake, as  he understood,  in oral argument  that the  court had                                                              
the power  to order deletion.   That  was a fundamental  error and                                                              
thus he   didn't  object to  inserting that  [the court]  can't do                                                              
that.   Representative Croft agreed  with Senator Donley  that how                                                              
the legislature  frames it is what  should go before  [the court].                                                              
Representative Croft  did feel that there is a  difference between                                                              
amendments  and   revisions.     Furthermore,  he  believes   that                                                              
revisions do belong in a constitutional convention.                                                                             
REPRESENTATIVE ROKEBERG remarked  that the revision standing alone                                                              
is better because of the actions of the Alaska Supreme Court.                                                                   
SENATOR  DONLEY said  that he was  merely making  a suggestion  to                                                              
move somewhat  towards Representative Croft's position.   However,                                                              
he believes that he and Representative  Croft have a philosophical                                                              
disagreement on the separation of  powers.  Still, he felt that he                                                              
and Representative Croft would both  agree that the single subject                                                              
is somewhere  in the middle.  Senator  Donley left it to  the will                                                              
of the committee.                                                                                                               
Number 1853                                                                                                                     
REPRESENTATIVE CROFT  moved that the committee adopt  Amendment 1,                                                              
to  delete  Section  1.   He  commented  that  Section 2  is  less                                                              
problematic for  him.  He  said, "I don't  think courts  should do                                                              
that,  ...  but I  think  the  Bess  v. Ulmer  framework  and  the                                                          
framework  of  our  constitution   allowing  amendments,  but  not                                                              
revisions is an appropriate one."                                                                                               
REPRESENTATIVE ROKEBERG  objected and remarked that  Bess v. Ulmer                                                            
is the most egregious separation of powers he has ever observed.                                                                
Upon a roll call vote, Representatives  Murkowski, Croft, Kerttula                                                              
and  Kott  voted  in favor  of  Amendment  1  and  Representatives                                                              
Rokeberg and James voted against  it.  Therefore,  Amendment 1 was                                                              
adopted by a vote of 4-2.                                                                                                       
Number 1939                                                                                                                     
REPRESENTATIVE  ROKEBERG moved to  report SJR  27 am, as  amended,                                                              
out  of   committee  with   individual  recommendations   and  the                                                              
accompanying  fiscal note.   There being no  objection, it  was so                                                              
ordered  and  HCS  SJR  27(JUD) was  reported  out  of  the  House                                                              
Judiciary Standing Committee.                                                                                                   

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