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Leg Council holds initiative hearing
Certification in March; Legislature could void petition by enacting ‘substantially the same’ legislation; likely on general election Kristen Nelson Petroleum News
The Legislative Council held a hearing on the oil and gas tax initiative, as required by law, on Feb. 25, hearing from the Department of Law, Legislative Legal and the Department of Revenue.
Assistant Attorney General Cori Mills said the department had been asked to go over what the initiative process entails going forward. The petition was certified in October, signatures were gathered and turned in Jan. 17. The Division of Elections has 60 days to certify signatures and determine whether they meet the qualifications in the constitution, Mills said: a number equal to at least 10% of those who voted in the preceding general election, who are residents in at least three-quarters of the house districts in the state and who equal at least 7% of those voting in the preceding general election in each of those house districts.
By March 17 it will be known if the petition is certified.
Substantially same The Legislature can void the petition through enactment of substantially the same measure, a determination which would be made by the lieutenant governor with the concurrence of the attorney general, Mills said, after such a bill becomes law.
Asked about the issue of substantially similar, and whether proceedings in legislative hearings would affect the Department of Law’s opinion, Mills said there are two main cases, and the test from the court is scope, purpose and means. The court must determine the scope and gives the Legislature leeway depending on how broad the law is. The court would look at whether the general purpose is the same general purpose as the initiative, or whether it is just a hollow gesture to bypass the people’s initiative power. The legislative record could be used to argue either side, she said.
Asked about a hollow gesture in the context of this initiative, Mills said she couldn’t speculate, but would advise paying attention to the focus of the initiative.
As to means, she said the court must consider whether the means is the same in both legislation and initiative, and said it would be necessary to do a close examination of the initiative and compare it section by section with any legislation passed.
Any public statements made on the record during the legislative process can be brought into a court process to support a view of the law, but ultimately, Mills said, the court has looked at the specifics of the law - what do the provisions say.
Once the initiative is certified, it has to appear on the first statewide election more than 120 days after the Legislature adjourns, so an April 19 adjournment would be required for the initiative to appear on the primary; after that it would be the general.
If the initiative passes, it would be effective 90 days after the election results are certified and would be effective whether or not regulations are in place.
Where in statute On the issue of where the initiative would be placed in statute, Megan Wallace director of the Legislature’s Legal Services, said the initiative’s language does not specifically amend any existing Alaska statutes, although it refers to AS 43.55. Determination of where to place it would be up to the revisor of statutes, but likely it would be placed in 43.55 as its own article and would also likely be placed in statute exactly as it looks today.
Leg legal wouldn’t do any cleanup, she said, and any technical cleanup would likely take two to three years.
Asked about terms in the initiative which appear vague, Wallace said the revisor cannot make any changes that would have the effect of changing the meaning of law - those would be policy changes that only the Legislature can make.
The Legislature has the power to amend the initiative at any time, although it can’t drop the initiative for two years. Wallace said there has been some litigation on how far the Legislature can go in amendments, and the Alaska Supreme Court would look at whether an amendment makes changes that go too far.
She said the Department of Revenue and the administration would identify how the initiative would be carried out and the Legislature can examine that, and if the Legislature determines clarification is needed, that would need to occur in a bill. Discussion on those changes would be part of what would be considered on whether changes went too far and probably there would be a high chance of litigation if backers of the initiative felt the Legislature went too far.
Costs to implement Colleen Glover, director of the Tax Division at the Department of Revenue, said the department would implement the initiative 90 days after certification, and would have to have the system available for taxpayers for the next month’s filing, including internal programming and the customer user interface. The estimate to update those systems is $7.5 million, she said, with most of the work in programming, and would be a big lift to do in 90 days.
Work would begin on needed regulations, Glover said, but completion of those could be six months to a year depending on the complexity of the regulations and based on the time it has taken for previous tax changes.
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