Plumley v. Hale
| Decision Date | 04 May 1979 |
| Docket Number | 4017,Nos. 4014,s. 4014 |
| Court | Alaska Supreme Court |
| Parties | Norma PLUMLEY and Larry A. Plumley, Petitioners, v. George E. HALE, M. D., Inc. and George E. Hale, Respondents. Eula Lee FIDLER and Donald Lee Fidler, Petitioners, v. Peter O. HANSEN et al., Respondents. Ellen ANAKA, Petitioner, v. ALASKA HOSPITAL & MEDICAL CENTER. |
Before BOOCHEVER, C. J., RABINOWITZ, CONNOR and MATTHEWS, JJ., and DIMOND, Senior Justice.
In these medical malpractice cases the trial courts ordered the use of expert advisory panels under AS 09.55.536, and upheld the constitutionality of that statute. 1 Petitioners challenge these orders on various grounds, all of which were rejected by the superior courts. We granted their petitions for review on one question only, namely whether AS 09.55.536 was enacted in violation of the recorded vote requirement of article II, section 14 of the Alaska Constitution.
The procedural history of the statute in question is not in dispute. 2 It was enacted as part of section 33, chapter 102 of the 1976 Session Laws of Alaska, the chapter being devoted to various matters pertaining to health care. 3 The bill was introduced in the House as HB 574, was replaced by a committee substitute bill (CSHB 574), and on the third reading of the committee substitute, as amended, the bill was approved in the house by a recorded roll call vote of 29-0. 1976 House Journal 433. The bill was then engrossed, certified and sent to the Senate.
A Senate committee proposed an amended version of the bill (SCS CSHB 574), which was passed after the third reading by a recorded roll call vote of 19-0. 1976 Senate Journal 460. The bill as thus amended was returned to the House, where by simultaneous voice vote, the House refused to concur in the Senate amendments. The Senate then refused to recede from its amendments, also by simultaneous voice vote, and each house then designated three members to serve on a free conference committee.
The free conference committee under then current legislative rule 43(b) had the authority to propose and draft entirely new statutory provisions, as long as they were germane to the subject matter of the legislation being considered. 4 The free conference committee did in fact recommend adoption of a version of chapter 102 SLA 1976 that differed in many respects from the version originally passed by the House. 5 The free conference committee's bill (FCCS SCS CSHB 574) was passed by the Senate by a recorded vote of 17-3. 1976 Senate Journal 1314. In the House, however, there was no roll call or recorded vote; the free conference committee bill was passed there by a simultaneous voice vote. 1976 House Journal 1535.
The petitioners contend that this voice vote constituted "final passage" of chapter 102 SLA 1976 and thus violated article II, section 14 of the Alaska Constitution:
PASSAGE OF BILLS. 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 membership of each house. The yeas and nays on final passage shall be entered in the journal.
The respondents here, and the State of Alaska, as intervenor, argue that "final passage" is a legislative term of art, referring only to the initial passage of a bill in its house of origin, and to the initial passage of the bill, in amended or original form, by the second house. Thus it is argued that article II, section 14 does not apply to subsequent legislative action taken to resolve any discrepancies in the initial versions of a bill passed by the two houses.
We cannot agree that article II, section 14 was intended to be limited in the fashion suggested by the respondents. The requirement that the vote on final passage be by individual yeas and nays, and be recorded in the relevant house journal, is a formality embodying several purposes: to ensure deliberation prior to passage, to ensure that the requisite majority of each house affirmatively votes to enact a bill into law, and to provide a public record of the vote cast by each legislator. It is thus designed to engender a responsible legislative process worthy of the public trust.
These purposes would be ill-served if "final passage" were to be construed merely as a term of art. A free conference committee may substitute a bill which is entirely different from those presented to it by each house. We can think of no reason why such a bill should be exempt from the constitutional requirement of a recorded individual vote. The observation made by the Kentucky Supreme Court nearly one hundred years ago is no less true today:
The words "final passage" as used in our Constitution, mean final passage. They do not mean some passage before the final one, but the last one. They do not mean the passage of a part of a bill, or what is first introduced, and which may, by reason of amendment, become the least important. If so, then the body may pass what is practically a new bill in a manner counter to both the letter and spirit of the Constitution.
Norman v. Kentucky Board of Managers of World's Columbian Exposition, 14 Ky. 529, 20 S.W. 901, 902 (1892). It is in this clearest and most straightforward sense that we believe article II, section 14 was intended to be understood, and the sense in which the electorate that ratified it must have understood it. 6
The argument that "final passage" always had a peculiar and specific meaning prior to the constitutional convention, is supported by historical proofs that are at best ambiguous. The Organic Act of Alaska 7 and the early internal rules of the territorial legislatures, 8 do seem to have imposed the formalities of final passage only on the initial passage in each house. However these usages of "final passage", rather than defining a term of art, can be viewed as reflecting the reality that the initial passage in a house was most frequently true final passage. As legislative procedures evolved, the inappropriateness of a limited definition of "final passage" became apparent. Thus we find the territorial legislature amending its rules 9 and practices, 10 albeit not consistently. 11 Also, while some courts prior to our constitutional convention had opted for a technical definition of "final passage" in their own constitution, 12 others had rejected such an interpretation. 13
The first sentence of article II, section 14, demonstrates the drafters' anticipation that procedural changes would continue to occur. 14 At the same time article II, section 14 does not retain the juxtapositions giving rise to the limited construction of the Organic Act. Only the "three readings" requirement can be read as pertaining to the initial passage in each house. The "affirmative vote of the majority of the membership" and recorded vote requirements were not similarly limited, and are most naturally read as applying to the vote by which a bill actually and finally becomes law.
Utilization of the voice vote procedure has gained in frequency in recent times, and such legislative practice is entitled to interpretative weight. See C. Sands, 2A Sutherland's Statutes and Statutory Construction § 49.03 (4th ed. 1973). But the practice has not been consistent; the Senate has used it far less than the House of Representatives. 15 Furthermore, the legislature itself has recognized the problem; in 1977, Uniform Rule 41 of the Legislature was amended to require a formal "final passage" vote for the adoption of conference committee proposals. 16 Finally, we note that the very first state legislature, in codifying article II, section 14, as AS 24.30.080 and 24.30.090, did so in a fashion denoting its understanding that the "third reading" and "final passage" requirements were meant to be construed and applied as independent terms. 17 Authorities published subsequent to the constitutional convention support our interpretation of "final passage." See Minnehaha County v. South Dakota State Board of Equalization, 84 S.D. 640, 176 N.W.2d 56, 59-60 (1970); 1 Sutherland's Statutes § 14.04, at 386. 18
We therefore hold that "final passage" refers to that vote which is the final one in a particular house with regard to a particular bill. Such a final vote may occur at various stages. It may be on the third reading of a bill; it may be the vote to concur in the amendments adopted by the second house; it may be the vote to recede from amendments not concurred in by the other house; or it may be the vote to adopt the amendments proposed by a conference committee. 19
Whether a vote is the final one in a particular house is naturally a fact ascertainable only in retrospect, since whether a house has cast its final vote will frequently depend upon the action subsequently taken in the second house. We recognize that this uncertainty will compel...
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