ALAsKA LEGISLATIVE CouNCIL

Transcription

1 ALAsKA LEGISLATIVE CouNCIL STAFF BACKGROUND REPORT THE LEGISLATURE SITTING AS A UNICAMERAL BODY (ASSEMBLY) FOR THE UNORGANIZED BOROUGH November 1964

2 THE LEGISLATURE SITTING AS A UNICAMERAL BODY (ASSEMBLY) FOR THE UNORGANIZED BOROUGH This report is concerned with the authoiity of the legislature to sit as a unicameral body in order to legislate for the needs of the unorganized borough. The question was raised in 1964 by the introduction of House Bill 333 { 11 An Act relating to the legislature as the assembly for the unorganized borough 11 ). The pertinent portion of the body of the bill reads: * Section 1. AS is amended by adding new sections to read: Sec. 07. OS ASSEMBLY. The legislature, sitting as a unicameral body, acts as the assembly for the unorganized borough. Sec ASSEMBLY OFFICERS. The president of the senate serves as temporary borough chairman until the permanent chairman is elected by a majority vote of the membership of the assembly. The assembly may provide for the election of additional officers. Sec. 07. OS QUORUM. A simple majority of the membership to which the assembly is entitled constitutes a quorum to do business. Sec. 07. OS RULES. The assembly may adopt rules for the conduct of its business by a majority vote of the membership of the assembly. Sec. 07. OS POWERS. The assembly may pass ordinances relating to schools, planning and zoning, assessment and taxation, and any other subject or activity with which a first-class organized borough is empowered to deal. The Local Government Article of the Constitution provides: Section 6. The legislature shall provide for the performance of s ervices it deems necessary or advisable in organized boroughs, allowing for maximum local participation and responsibility. It may exercise any power or function in an unorganized borough which the assembly may exercise in an organized borough. [Emphasis added] L1 The Legislative Council directed the staff to examine the subject matter of the bill from the constitutional aspect to determine the thinking of the Alaska L1 Article X, Section 6, Constitution of the State of Alaska

3 -2- State Constitutional Convention was regarding how the legislature was to govern the unorganized borough. The recorded deliberations of the Convention in general session and the reports of its Committee on Local Government were examined and they offer no evidence of an intent to constitute the legislature in a special manner when legislating for the unorganized borough. In all pertinent deliberations, reference is made only to the "legislature" and there is no reference to any special structure or procedure for that body when acting to govern the unorganized borough.l2 Likewise, the various official studies of local government in which the unorganized borough is discussed refer only to the "legislature" and make no mention of a special method for governing the unorganized borough.l3 The studies make occasional reference to the "legislature as the assembly for the unorganized borough, " a phrase which appears neither in the record of the Convention nor in the Constitution itself. Nothing more significant than that reference appears to sustain a premise that the legislature might function with respect to the unorganized borough in the same manner as prescribed by law for the assembly of the organized borough, i.e. in the nature of a unicameral body. In the absence of discussion concerning a special composition of the legislature as governing body of the unorganized borough, the Convention deliberations and studies suggest either that the question did not occur to the Convention or to those preparing the studies, or else that no special composition was intended. From the record neither premise can be conclusively established although it would seem unlikely that a special composition, if intended, would be completely overlooked at the Convention or in subsequent studies. L2 L3 Proceedings of the Alaska Constitutional Convention, , as transcribed by the Alaska Legislative Council, pp. 2649, , 2673, 2729~2730, Sources examined include: LOCAL GOVERNMENT UNDER THE ALASKA CONSTITUTION, Public Administration Service, Chicago, January 1, 19 59, pp 2, 7, ESTABLISHING LOCAL GOVERNMENT IN ALASKA, A STATEMENT PREPARED FOR AND AT THE REQUEST OF THE ALASKA LEGISLATIVE COUNCIL, W. Brookes Graves, November 28, 1959, pp LOCAL GOVERNMENT AND THE STATE CONSTITUTION: CONSTITUTIONAL INTENT, Alaska Legislative Council, December 1, 1959, pp FINAL REPORT ON BOROUGH GOVERNMENT, Alaska Legislative Council and Local Affairs Agency, January, 1961, p. 42, PP

4 -3- However inconclusive the deliberations and studies, the question is much more readily resolved by the Constitution itself. It supplies no indication of any intended special composition for the legislature in governing the unorganized borough. In addition, certain of its provisions appear to compel the conclusion.that the legislature clearly may not form itself into a unicameral body for the purpose. 1 - Section 1 of the Legislative Article specifically establishes the legislature as a bicameral body: SECTION 1. The legislative power of the state is vested in a legislature consisting of a senate with a membership of twenty and a house of representatives with a membership of forty. L4 When, accordingly, the Constitution directs in Article X, Section 6 that 11 the legislature shall provide for the performance of services it deems necessary or advisable in unorganized boroughs [Emphasis added], the reference must be taken to mean the bicameral legislative body designated in Article II, Section 1. It is a fundamental rule of constitutional construction that words in the constitution must be presumed to have been employed in their natural and ordinary meaning, and the framers intended what they have said. No forced or unnatural construction should be put upon their language.ls Moreover, where a provision is plain and unambiguous, no room is left for construction, and, when a meaning is plainly declared in the instrument itself, courts are not at liberty to search elsewhere for possible, or even probable, meanings.l6 These basic rules would seem to compel the conclusion that the use of the term 11 legislature 11 in Article X, Section 6, means plainly and unambiguously the bicameral legislative body established under Article II, Section 1. No special construction of the term appears permissible. While the constitution could have provided for a different structure or procedure for the legislature as governing body of the unorganized borough, it does not, neither expressly nor by implication. L4 Article II, Section 1, Constitution of the State of Alaska LS Cooley's Constitutional Limitations (6th Ed.), p, 73 L6 Id., at 70

5 In requiring bicameral action for the passage of bills, Section 14 of the Legislative Article provides a further clear indication that the unorganized borough may not be governed on a unicameral basis: - SECTION 14. The legislature shall establish the procedure for enactment of bills into law. No bill may become law unless it has passed three readings in each house on three separate days, except that any bill may be advanced from second to third reading on the same day by concurrence of three-fourths of the house considering it. No bill may become law without an affirmative vote of a majority of the members of each house. The yeas and nays on final passage shall be entered in the journal. [Emphasis added]l7 The legal meaning of "bill 11 is the 11 draft of an act of the Legislature before it becomes a law; a proposed or projected law; a draft of an act 11 presented to the legislature but not enacted. "L8 Law" has a very 11 inclusive meaning, to wit: That which is laid down, ordained, or established. A rule or method according to which phenomena or actions co-exist or follow each other. That which must be obeyed and followed by citizens, subject to sanctions or legal consequences. "L9 The term includes acts of the legislature properly authenticated by presiding officers of the two houses and approved by the Governor and extends also to municipal ordinances.llo Accordingly, even if it is assumed that the legislature is acting as a local governing body with respect to the unorganized borough, it would still be enacting 11 laws. 11 Additional support for this conclusion could be inferred from that part of Section 11 of the General Provisions Article equating the legislature's exercise of the law-making power with "law 11 : SECTION 11. As used in this constitution, the terms "by law" and 11 by the legislature, " or variations of these terms, are used interchangeably when related to law-making powers. Unless clearly inapplicable, the law-making powers assigned to the legislature may be exercised by the people through the L7 Article II, Section 14, Constitution of the State of Alaska La Black's Law Dictionary (4th Edition), p. 209 L9 Id., at 1028 LlO Ibid.

6 -5- initiative, subject to the limitations of Article XI. added]lll [Emphasis Bills to enact laws are constitutionally required, as indicated above, to pass two houses and cannot be enacted on a unicameral basis. The constitution furnishes no indication that bills with respect to the unorganized borough may be enacted in any other manner. 3 - It is, of course, clear that not all actions of the legislature are to be conducted on a bicameral basis since the constitution explicitly authorizes the legislature to sit in joint session for certain purposes. These relate primarily to actions of the Governor.L12 The term "joint session" has a well-recognized meaning and implies the meeting together and commingling of the two houses of a legislative body which, when met and commingled, act as one body;l13 each member of that body, when it has been once properly and lawfully convened, has equal rights and his vote has equal weight with that of any other member.l14 Lll Article XII, Section 11, Constitution of the State of Alaska Ll2 The Constitution provides for joint sessions in: Article II, Section 16 (to reconsider passage of a vetoed bill or item) Article III, Section 17 (when convened by the 'Governor) Article III, Section 2 0 (approval of the extension of a period of martial law) Article III, Sections 19, 2 3, 2 5 and 2 6 {to confirm certain executive appointments and treat with executive orders) Article IV, Section 8 (to confirm judicial council appointments) In addition, Rule 50 of the Uniform Rules of the Legislature, adopted under the authority of Article II, Section 12, controls the calling and conduct of joint sessions for procedural and ceremonial matters other than for actual legislating or treating with other constitutionally assigned duties or powers. Ll3 81 Corpus Juris Secundum 953; 23 Words and Phrases 97; Snow v. Hudson, 56 Kan , 3 8 6, 4 3 P. 2 d 2 6 0, Ll4 Cooley, supra, p. 156; Words and Phrases, supra; Snowv. Hudson, supra

7 -6- To sit as a unicameral body for governing the unorganized borough, the legislature would inherently be meeting in joint session. However, nowhere does the constitution authorize a joint session for the purpose. The rule of law, moreover, is that the legislature may do jointly only that authorized by the state constitution.lis The two houses of a legislature may have the right to sit in joint session for certain purposes, but the right so to sit is a limited constitutional right and cannot be augmented by the legislature.ll6 Application of this rule alone compels the conclusion that the legislature cannot sit as a unicameral body to govern the unorganized borough. In summary, the Constitutional Convention (including its Committee on Local Government), official local 'government studies, and the constitution itself offer no evidence to indicate that the legislature is intended to have any different structure or procedure for legislating with respect to the unorganized borough than it has for purposes of law-making in general. Further, it does not appear constitutionally-permitted for the legislature to sit as a unicameral body for purposes of governing the unorganized borough: (a) the term 11 legislature 11 used in Section 6 of the Local Government Article plainly and unambiguously refers to a bicameral legislative body; (b) bicameral action is required for enactment of bills into law, and (c) the limited constitutional authority of the legislature to sit in joint session to transact certain business does not extend to the governing of the unorganized borough. LIS Ex Parte Hague, 144 A. S46, 104 N.J. Eq. 31 L16 Corpus Juris Secundum, supra; Mason s Manual of Legislative Procedure, p. SS7; 1 Sutherland Statutory Construction 101; Ex Parte Hague, 147 A. 220, los N.J. Eq. 134, aff'd 9 N.J. Misc. 89, lso Att 322