Legislature(2021 - 2022)BUTROVICH 205
03/24/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | SB 9 | TELECONFERENCED | |
| + | SJR 1 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 24, 2021
1:32 p.m.
MEMBERS PRESENT
Senator Lora Reinbold, Chair
Senator Mike Shower, Vice Chair
Senator Shelley Hughes
Senator Robert Myers
Senator Jesse Kiehl
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Senator Peter Micciche
COMMITTEE CALENDAR
CONFIRMATION HEARING:
Attorney General, Department of Law
Treg Taylor - Anchorage
- HEARD AND HELD
SENATE BILL NO. 9
"An Act relating to alcoholic beverages; relating to the
regulation of manufacturers, wholesalers, and retailers of
alcoholic beverages; relating to licenses, endorsements, and
permits involving alcoholic beverages; relating to common
carrier approval to transport or deliver alcoholic beverages;
relating to the Alcoholic Beverage Control Board; relating to
offenses involving alcoholic beverages; amending Rule 17(h),
Alaska Rules of Minor Offense Procedure; and providing for an
effective date."
- SCHEDULED BUT NOT HEARD
SENATE JOINT RESOLUTION NO. 1
"An Act relating to alcoholic beverages; relating to the
regulation of manufacturers, wholesalers, and retailers of
alcoholic beverages; relating to licenses, endorsements, and
permits involving alcoholic beverages; relating to common
carrier approval to transport or deliver alcoholic beverages;
relating to the Alcoholic Beverage Control Board; relating to
offenses involving alcoholic beverages; amending Rule 17(h),
Alaska Rules of Minor Offense Procedure; and providing for an
effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
TREG TAYLOR, Designee
Attorney General
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Testified as Attorney General Designee,
Department of Law.
MIKE GERAGHTY, Attorney; representing self
Anchorage, Alaska
POSITION STATEMENT: Spoke as invited testifier.
CHARLES MCKEE, representing self
Anchorage, Alaska
POSITION STATEMENT: Spoke on a matter unrelated to the
confirmation hearing.
ANDREE MCLEOD, Good Government Director
Alaska Public Interest Research Group
Anchorage, Alaska
POSITION STATEMENT: Testified with concerns about Treg Taylor,
attorney general designee.
THERESA OBERMEYER, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to Treg Taylor,
attorney general designee.
DAVID CARTER, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to Treg Taylor,
attorney general designee.
JULIE SMYTH, representing self
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to Treg Taylor,
attorney general designee.
ACTION NARRATIVE
1:32:57 PM
CHAIR LORA REINBOLD called the Senate Judiciary Standing
Committee meeting to order at 1:32 p.m. Present at the call to
order were Senators Kiehl, Myers, Hughes, Shower, and Chair
Reinbold.
^CONFIRMATION HEARING
CONFIRMATION HEARING
Attorney General, Department of Law
1:33:33 PM
CHAIR REINBOLD announced the consideration of the Governor's
Appointee for Attorney General, Department of Law.
1:34:30 PM
TREG TAYLOR, Designee, Attorney General, Department of Law,
Anchorage, Alaska, said he grew up in Southern Alberta, Canada.
His family lived on the Kainai Nation Reservation for several
years when his parents taught school there. He stated that he
has fond memories of the Kainai, one of the three tribes
comprising the Blackfoot Confederacy. He said he learned a deep
respect for culture and traditions different from his own. He
has always been drawn to public service. He related his hero has
always been his grandfather, who served in the U.S. Army Air
Corps during WWII and was stationed in Alaska. He elaborated on
his relationship with his grandfather.
ATTORNEY GENERAL DESIGNEE TAYLOR said he moved to Iowa with his
mother when his parents divorced. He later attended the U.S. Air
Force Academy. He described some of his experiences at the
academy that led him to serve on a religious mission in the
Canary Islands and his struggles to decide whether to sign the
acceptance letter to continue his U.S. Air Force Academy
service. He recalled his faith led him to that decision. He
elaborated on how he met his wife, worked several summers in
Alaska, attended college and drove up the Alaska-Canada Highway
(ALCAN) to move to Alaska. He elaborated on his family life.
ATTORNEY GENERAL DESIGNEE TAYLOR reviewed his work history. He
practiced in commercial litigation, representing the state, the
Municipality of Anchorage, energy companies and many other
businesses in Alaska. He was hired by DeLisio Moran Geraghty &
Zobel.
1:41:32 PM
ATTORNEY GENERAL DESIGNEE TAYLOR stated he worked at McKinley
Capital Management, LLC from January 2008 to December 2014. One
of his primary roles was to help the company navigate the
rapidly changing investment management regulatory schemes
worldwide. He left to work as Senior Corporate Counsel for
Arctic Slope Regional Corporation (ASRC) from January 2015 to
December 2018. He was then asked to join the Department of Law,
as the Civil Division's Deputy Director in December 2018.
ATTORNEY GENERAL DESIGNEE TAYLOR listed his community activity
participation.
1:45:40 PM
ATTORNEY GENERAL DESIGNEE TAYLOR stated that not only does
Alaska have the highest rate of sex crimes, but its sexual
assault rate is almost double the rate of any other state. He
vowed the state has determined to do everything possible to
address this epidemic. Until this issue is resolved, the state
will be hobbled. He acknowledged this would not be an easy
problem to address but he will work to make Alaska a better
place for Alaskans.
1:46:01 PM
CHAIR REINBOLD disclosed that she helped Mr. Taylor campaign for
the school board in 2008.
She asked if he is confirmed if he would consider himself
employed by the governor or the people of Alaska.
ATTORNEY GENERAL DESIGNEE TAYLOR answered that he swore an oath
to the U.S. Constitution and the Alaska Constitution. The Alaska
Constitution begins with "We the people of Alaska ?" so
ultimately, his commitment is to the people of Alaska. He said
he is also employed by the state at the governor's request. In
further response, he agreed he would work for the people of
Alaska.
1:47:40 PM
CHAIR REINBOLD asked if the emergency powers of the executive
branch were intended to be used for short periods and whether
the Alaskans' civil liberties could be infringed upon for the
greater good of Alaskans.
ATTORNEY GENERAL DESIGNEE TAYLOR said the Alaska Disaster Act
was principally designed to allow the governor to rapidly
respond to acute disasters such as earthquakes. Although it was
not intended for an extended pandemic, the Act gave the governor
broad authority to respond.
1:48:59 PM
CHAIR REINBOLD recalled that he previously acknowledged that he
reviewed mandates to identify constitutional concerns.
ATTORNEY GENERAL DESIGNEE TAYLOR replied that he reviewed the
disaster declaration for constitutional or other legal issues.
CHAIR REINBOLD asked if the mandates can infringe upon Alaskans'
civil liberties for short periods for the good of all Alaskans.
ATTORNEY GENERAL DESIGNEE TAYLOR answered yes. The intent of the
Alaska Disaster Act is to give the governor the authority to
take actions that sometimes infringe upon individual civil
liberties.
1:50:15 PM
SENATOR HUGHES asked if it would be appropriate for the
legislature to limit the governor's powers in statute to create
checks and balances related to the mandates, such as limiting
the length of time. She asked if it would be appropriate for the
legislature to make determinations on the necessity to continue
the mandates and if he would advise the governor to support it.
1:50:59 PM
ATTORNEY GENERAL DESIGNEE TAYLOR responded that after any use of
a disaster declaration, it would be good for the legislature to
go back to assess any actions taken and make suggestions to the
governor. He said he would support this effort.
1:51:39 PM
SENATOR KIEHL said he previously expressed concern with the
serial disaster declarations. He offered his view that a
separation of powers issue arose when the legislature delegated
its authority to the governor and reserved to itself the ability
to pass on how long the disaster declarations could be in
effect. The governor issued a series of declarations giving a
variety of reasons, which he briefly listed. He asked Mr. Taylor
if he saw any separation of powers issues. He asked how he would
advise the governor as to the constitutionality of serial
disaster declarations, if not convening the legislature after 30
days.
ATTORNEY GENERAL DESIGNEE TAYLOR answered that he believes it is
a separation of powers issue. He explained that the Alaska
Disaster Act, as written, gives the governor the authority to
institute a disaster declaration for 30 days, which is exactly
what the governor did. The legislature could consider any policy
concerns on whether the governor appropriately used his
authority under the Act to issue a succession of disaster
declarations. If so, the legislature could amend the Alaska
Disaster Act, he said.
SENATOR KIEHL stated that the Alaska Disaster Act limits the
governor to issue one declaration per condition. He related a
hypothetical situation in which geologists issued a warning of
potential volcanic action for many volcanoes throughout Alaska.
He asked whether the governor could issue a new disaster
declaration if the legislature did not convene and geologists
found the presence of ash at one of these volcanos.
ATTORNEY GENERAL DESIGNEE TAYLOR acknowledged that the Alaska
Disaster Act was an imperfect tool for the COVID-19 epidemic.
Under the plain reading of the Act, the governor can issue a
declaration for 30 days. The COVID-19 epidemic spanned 18
months, with changing circumstances that needed constant
monitoring. The governor made ongoing decisions on the pandemic.
The governor had the authority to declare the additional
disaster declarations. The legislature had the authority to call
itself into session to act on those disaster declarations.
Although the process was not ideal, he hoped that the
legislature and the governor would address these issues in the
coming months. He characterized the problem as a hole in the
Alaska Disaster Act.
1:55:39 PM
CHAIR REINBOLD asked if Alaska's laws should be arbitrarily
applied with winners and losers.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that every law
somewhat chooses winners and losers. For example, a law
governing new taxi services by its very nature allows certain
people to open a business but not others. The legislature takes
those policy considerations into account and tries to craft laws
that are fair and equitable to all Alaskans.
1:56:33 PM
CHAIR REINBOLD asked how the essential and non-essential workers
were determined, how the mandates were applied, and if the
executive branch should identify essential and non-essential
workers.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that identifying
essential and non-essential workers is a policy decision.
However, as attorney general, he does not offer opinions on
policy decisions. Given the nature of the pandemic, tough calls
needed to be made. The governor likely weighed the positive and
negative options and decided what he thought best served
Alaskans. Since the governor answers to the voters of the state,
voters can react to the governor's decisions at the polls.
ATTORNEY GENERAL DESIGNEE TAYLOR, in further response, explained
that his role as attorney general is to apply the law and defend
the laws when they are challenged. He said the Alaska Disaster
Act mandates had the effect of law.
1:59:05 PM
SENATOR SHOWER referred to an early comment that the legislature
could have called itself into a special session. He pointed out
that many legislators were not polled as to whether the
legislature should call itself into session to act on the
disaster declarations. However, many legislators would have
liked an opportunity to do so. He related that legislators
respond to their constituents and some businesses reported that
the mandates were not equally applied. Some felt unfairly
targeted or threatened with liquor or other license revocations
if they did not close to control the pandemic. Some businesses,
such as marijuana shops were allowed to remain open, but other
small businesses or churches were required to close. Some small
businesses did not survive the pandemic.
SENATOR SHOWER emphasized the need to debrief, that it will be
important for the legislature and state to review policies and
determine which laws and policies worked during the pandemic and
amend statutes and policies to achieve a better outcome. He
asked for the attorney general's commitment to help address
these issues in the event other disasters occur.
ATTORNEY GENERAL DESIGNEE TAYLOR agreed that it would be
critical for the legislature and the executive branch to hold
those discussions and develop recommended changes to the Alaska
Disaster Act to achieve a better outcome and process.
2:02:34 PM
SENATOR SHOWER asked he supports and will not oppose the efforts
of the legislature to assert its responsibilities to review
COVID-19 actions.
ATTORNEY GENERAL DESIGNEE TAYLOR answered that he supports that
effort.
2:02:59 PM
SENATOR HUGHES echoed that the Alaska Disaster Act was not
designed for an extended period. She expressed an interest in
ensuring that the economic impacts are balanced with the health
impacts in statute. She said it is one thing to keep everyone
healthy but adverse effects to the economy must be avoided.
2:04:08 PM
CHAIR REINBOLD agreed. She expressed concern about the state
health alerts' impact on religious liberties. She asked if he
reviewed the state health alerts.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that he may have seen
them, but he did not officially review them.
2:04:34 PM
CHAIR REINBOLD expressed concern with COVID-19 Health Alert 010
- Recommendations Regarding the Use of Cloth Face Coverings
issued on April 3, 2020. This alert highly recommended all
Alaskans wear cloth face coverings in public settings when other
social distancing measures were difficult to maintain. She asked
whether the governor's July 22, 2020, mask mandate was still in
place.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that the governor did
not issue a statewide mask mandate.
CHAIR REINBOLD further clarified that her question related to
the governor's mask mandate for state workers and people who
enter state-owned buildings and facilities.
ATTORNEY GENERAL DESIGNEE TAYLOR offered his belief that this
mandate was still in place.
CHAIR REINBOLD expressed concern about specific health mandates
imposed at churches requiring face masks, which detailed
guidelines related to specific church activities. She offered
her belief this health mandate infringed upon religious
liberties. She asked for his views on infringements on religious
liberties, including limiting the number of people who can
gather at church services and functions.
ATTORNEY GENERAL DESIGNEE TAYLOR answered that like any
protected class such as religious liberties, heightened scrutiny
should be applied. This is exactly what the courts will do, he
said. During a court proceeding, the court will determine
whether the disaster declaration or mandate was narrowly
tailored to address the state's interest and that the interest
was great enough to infringe on a person's religious freedom or
other protected freedom.
2:07:18 PM
CHAIR REINBOLD pressed for a yes or no answer about whether
first amendment religious freedoms could be infringed upon.
ATTORNEY GENERAL DESIGNEE TAYLOR answered that there are times
when personal liberties, including religious freedoms, can be
infringed upon.
CHAIR REINBOLD asked if he supported the mask and other
restrictions imposed at churches.
ATTORNEY GENERAL DESIGNEE TAYLOR reminded members that he does
not make policy calls; instead, he reviews the governor's
policies and the administration's policies. For example, people
have freedom of speech rights, but they cannot yell "fire" in a
full theater. The courts recognize certain limitations can be
imposed to curtail some religious freedoms. He characterized
these curtailed activities as wise ones, falling under the
separation of powers. The courts ultimately decide whether laws
overly burden its citizens and Alaska's residents. He
acknowledged that citizens sometimes experience infringements on
their freedoms given those checks and balances.
SENATOR HUGHES clarified that the state did not mandate that
people wear cloth masks in churches. The health alert
recommended people wear masks.
CHAIR REINBOLD offered her belief that the governor mentioned
cloth coverings either in his mandates or in press releases
hundreds of times.
2:09:24 PM
CHAIR REINBOLD asked whether he reviewed the federal court cases
to evaluate if the mandates are applied lawfully and in the
State of Alaska's best interests, such as the U.S. Circuit Court
Jew Ho v. Williamson (1900) case.
ATTORNEY GENERAL DESIGNEE TAYLOR related the purpose of his
review of mandates was to determine any apparent conflict with
the U.S. Supreme Court and Alaska Supreme Court.
SENATOR SHOWER asked whether the Fourteenth Amendment due
process rights were protected when the governor issued disaster
declarations and mandates. He related the importance of knowing
any advice he gave or would give the governor in these matters.
As previously noted, some businesses closed down.
ATTORNEY GENERAL DESIGNEE TAYLOR answered that by its very
nature, the Alaska Disaster Act removes some due process rights
and safeguards in order to address an impending epidemic or
disaster.
2:12:59 PM
SENATOR SHOWER asked if another similar disaster were to occur,
whether he would advise the governor to take a different
approach. He pointed out that COVID-19 declarations and mandates
adversely impacted some businesses but not others.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that many cases are
before the courts relating to these very subjects. Those
decisions will further define and clarify when the state can
infringe on citizens' rights. As previously stated, he said he
hoped the legislature would address some issues statutorily. He
said one change he would make would be to advise the governor to
initially conduct a constitutional review rather than later on
in the process.
2:15:42 PM
CHAIR REINBOLD commented that the mandates affected many areas,
such as closing schools, including private schools. She said she
was not a fan of winners and losers.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that the governor has
not issued a statewide mandate affecting the average citizen
since May 2020. There were disaster declaration provisions to
address specific sectors, such as the commercial fishing
industry, due to its vital nature to the economic viability in
Alaska. Most people are familiar with airport testing, which is
currently discretionary. Thus, there has been a considerable
amount of time without an overarching mandate from the governor,
he said.
2:17:04 PM
CHAIR REINBOLD highlighted the numerous mandates [and guidelines
in attachments] A through H for [the COVID-19 Health] Mandate
16, issued on April 22, 2020, that impacted Alaskans.
CHAIR REINBOLD repeated her earlier question about whether he
had reviewed Jew Ho v. Williamson (1900) the U.S. Circuit Court
decision. Approximately 15,000 Chinese residents in San
Francisco were quarantined to contain the bubonic plague. The
court held this was unconstitutional on the grounds that it was
unreasonable, unjust, and oppressive. Jew Ho demonstrates that
quarantine can be used as an instrument of prejudice and impact
vulnerable populations. She pointed out that instances are
cropping up in which people with vaccines can access services
that unvaccinated people cannot obtain. She asked him to comment
on this case.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that the court got it
right since government cannot target a specific group of people
when managing a pandemic.
CHAIR REINBOLD asked if he would protect and defend Alaskans'
right not to get the mRNA vaccine as a condition of employment
or receive services.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that it was the
governor's intent that obtaining a vaccine is voluntary.
However, private businesses may decide requirements that
employees must follow.
2:20:45 PM
SENATOR HUGHES remarked that private schools were never mandated
to close and many of them did very well.
CHAIR REINBOLD said she would not debate the issue. She asked
whether he knew that mRNA vaccines require informed consent and
cannot be mandated under federal law.
ATTORNEY GENERAL DESIGNEE TAYLOR stated his intent to review the
law and follow the law.
2:22:35 PM
SENATOR KIEHL recalled holding conversations with Mr. Taylor on
the case of Janus v. American Federation of State, County, and
Municipal Employees. He said he agrees to disagree on the merits
of the case but pointed out the separation of powers question
relates to the executive branch funding for efforts on that
case. He asked how the executive branch can continue to exceed
the amount for outside contracts when the legislature has the
power to appropriate. Last year, the legislature established a
budget structure for expenditures on outside contracts.
ATTORNEY GENERAL DESIGNEE TAYLOR agreed that this is a
separation of powers issue. He said he did not make the decision
to get involved in the litigation or to use outside counsel. The
Alaska Supreme Court has made it clear that the attorney general
has the authority to bring lawsuits in the public's interest.
That is what occurred with the governor's prior two
predecessors. He said he is aware of the confinement clause,
which does not allow the legislature to use an appropriation
bill to administer a state program. He suggested there might be
issues with that aspect. He said he has asked DOL to review
those decisions and make recommendations. Based on this review,
he might ultimately decide that the appropriation restriction is
necessary and stop the practice. He offered his willingness to
do so if that is what the law states. Currently, he is awaiting
that decision, but he is fully prepared to decide independently
of the ones his predecessors made, depending on the report.
2:25:08 PM
CHAIR REINBOLD referred to Health Alert or mandate 013 issued on
April 9, 2020. She read, "The statewide school closure of all K-
12 and private schools is being extended from May 1, 2020, to
the end of the 2019-2020 school year.
2:25:25 PM
SENATOR MYERS related that some executive orders and federal
laws have recently passed. He asked for DOL's efforts to push
back on federal overreach.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that it is essential
that the state respond. He opined that the state's economic
viability is at risk over the next four years. The governor's
budget proposal provides funds to research the legal issues and
use outside counsel when necessary. DOL has reviewed executive
orders. The agencies will engage in a rulemaking process and DOL
will participate. If DOL finds that the rules violate the law,
the department will litigate. Currently, the state joined a
Louisiana lawsuit regarding a proposed moratorium on leasing for
onshore oil and gas exploration. DOL also intervened in a
Wyoming case to address whether presidential executive orders
violated administrative procedures.
2:28:47 PM
SENATOR SHOWER highlighted that the legislature is considering
measures related to significant voter rights issues and other
bills related to states' rights. He asked what efforts DOL would
make to address federal overreach and protect Alaska's
uniqueness.
ATTORNEY GENERAL DESIGNEE TAYLOR answered that DOL would be
actively engaged to protect statehood rights. For example, DOL
has intervened in the challenge to a final [Alaska Roadless
Rule] exempting the Tongass National Forest [from the 2001
provision] that prohibited road construction and timber
harvests. Alaska is one of many states with resources that make
it economically viable to live. DOL continues to work
collectively with other states to address these issues, he said.
2:32:11 PM
SENATOR KIEHL turned to major drinking water contamination
caused by per and poly-fluoroalkyl substances (PFAS) related to
use if fire-fighting foams. He asked if he would work with the
Department of Environmental Conservation (DEC) to address the
costs and burdens on DEC staff.
ATTORNEY GENERAL DESIGNEE TAYLOR agreed that PFAS foam testing
is a significant concern to those living near airports where
PFAS testing took place. He stated the issue is complex. DOL is
currently engaged in several litigation cases related to PFAS,
including a lawsuit filed against the manufacturer of PFAS. The
litigation is costly since it requires outside experts and
studies, so it will likely be lengthy. He said he hopes for a
good outcome.
2:33:55 PM
SENATOR HUGHES recalled several letters from other states
regarding federal overreach, including West Virginia, Missouri,
Texas and Montana. Alaska and Hawaii are currently exempted from
the Clean Power Act, which might be at risk with the new
administration. She asked what efforts the department would make
on this issue.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that this is a
critical issue. He acknowledged that the Biden administration
has made it clear that it will establish its own rules. He
highlighted that DOL is unsure whether Alaska will remain
exempt, but the department will work to do so. DOL is closely
monitoring this issue, he said.
SENATOR HUGHES expressed an interest in obtaining his ideas on
addressing sexual assault crimes in Alaska.
2:36:14 PM
CHAIR REINBOLD stated her intention to bring Mr. Taylor back
before the committee to elaborate on these issues further.
CHAIR REINBOLD said she met with Mr. Taylor about three weeks
ago. At that time, she asked whether he had any input on the
[February 18, 2021] letter to her from Governor Dunleavy.
ATTORNEY GENERAL DESIGNEE TAYLOR said he often reviews letters
from Governor Dunleavy before they are sent.
CHAIR REINBOLD pointed out her concern that he does not have a
background in criminal law, including prosecution.
CHAIR REINBOLD then read a portion of Art. 3, Sec. 20 of the
Alaska Constitution:
The governor may proclaim martial law when the public
safety requires it in case of rebellion or actual or
imminent invasion. Martial law shall not continue for
longer than twenty days without the approval of a
majority of the members of the legislature in joint
session
CHAIR REINBOLD, in response to Governor Dunleavy's letter, said
she denies ever stating that the Governor declared martial law.
She suggested that the governor may have been confused about her
comments on the 14 pages of regulations and statutes that were
suspended, along with the numerous mandates.
CHAIR REINBOLD said Governor Dunleavy's accusations were
significant allegations. She asked Mr. Taylor if he would work
with her to have that letter retracted because, in her view,
none of it is substantiated. She said he did not need to
respond.
ATTORNEY GENERAL DESIGNEE TAYLOR acknowledged her concerns.
2:38:19 PM
CHAIR REINBOLD asked if he acknowledged by law and the
separation of powers that the legislative body has the sole
authority granted by the state constitution to create law and
the executive branch is to uphold and execute Alaska law.
ATTORNEY GENERAL DESIGNEE TAYLOR agreed that the primary
responsibility of the legislative branch is to enact law and it
is the principal responsibility of the executive branch to
enforce that law.
CHAIR REINBOLD restated the question.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that he agrees that
she described the general relationship between the legislature
and the executive branch but that this process has some checks
and balances. For example, he said the governor has veto power,
affecting which bills become law.
2:39:42 PM
SENATOR KIEHL turned to the constitutional provision that allows
the legislature to sweep funds into the Constitutional Budget
Reserve Account. Several years ago, the executive branch
reinterpreted which accounts were subject to the sweep. He asked
whether he agreed with the longstanding view that the Power Cost
Equalization (PCE) endowment is not subject to the sweep.
Second, he asked if he could commit to communicating with the
legislature when the executive branch intends to reinterpret the
longstanding understanding of an issue such as PCE.
ATTORNEY GENERAL DESIGNEE TAYLOR answered that the PCE issue has
arisen in his discussions with numerous legislators. He
acknowledged DOL is currently examining the issue to determine
the department's position. He said he likes to discuss and work
through issues. The last course of action should be litigation.
He expressed his willingness to hold discussions with the
legislature. However, sometimes policy calls must be made. He
said he's not an elected official, so he does not make policy
calls; the chief executive and cabinet members make those.
2:42:20 PM
CHAIR REINBOLD asked if the judicial branch or executive branch
of state government has any lawmaking authority under the Alaska
Constitution.
ATTORNEY GENERAL DESIGNEE TAYLOR answered no.
CHAIR REINBOLD asked what constitutional or legal foundations he
would consider regarding the authority of the governor to issue
executive orders limiting public and private gatherings, closing
or imposing restrictions on businesses and regulating a broad
variety of other aspects of the daily life of citizens for the
greater good of Alaskans.
ATTORNEY GENERAL DESIGNEE TAYLOR, after first clarifying the
question, opined that the legislature deferred its authority to
the governor for some of the situations related to the
declarations issued, which are laid out in the Alaska Disaster
Act. He explained that he would first review the Alaska Disaster
Act itself, consider Alaska case law and case law from other
states, if necessary, to best advise the governor in any given
situation. In terms of the COVID-19 pandemic, there were many
first impressions related to the disaster declarations. In those
instances, he gave the best advice possible, based on what was
known at the time. It is up to the governor to decide whether to
heed his advice or to go in a different direction.
2:45:10 PM
CHAIR REINBOLD asked whether the governor's emergency powers
pertaining to the governor's mandates resulting in the direct
deprivation of citizens' rights is compatible or incompatible
with the Alaska Constitution.
ATTORNEY GENERAL DESIGNEE TAYLOR answered that it is compatible
with Alaska Constitution, case law and the statutory framework.
CHAIR REINBOLD asked whether the U.S. Constitution and Alaska
Constitution represent the supreme law of the land.
ATTORNEY GENERAL DESIGNEE TAYLOR answered absolutely.
2:45:56 PM
SENATOR SHOWER said he understood Mr. Taylor to say that the
legislature delegated its authority to the administration
concerning the disaster declarations. He asked what steps should
be taken to better address the issues that arose between the
governor and the legislature.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that at the time the
Alaska Disaster Act passed, it acknowledged that the
legislature's pace and power is slow given that it takes time
for the legislature to gain consensus. Thus, the Alaska Disaster
Act recognized that the legislature must be bypassed at times to
deal with disasters. He suggested that the legislature could
fine-tune the Alaska Disaster Act.
SENATOR SHOWER asked his opinion on whether part of the problem
with the disaster declaration was that the legislature let it go
on for too long without addressing it.
ATTORNEY GENERAL DESIGNEE TAYLOR answered that one option always
available to the legislature is to remain silent. The
legislature can decide not to take issue. He characterized the
legislature's inaction as a policy call.
2:49:02 PM
CHAIR REINBOLD recalled that he found the proclaimed emergency
powers of the governor as it pertains to the mandates compatible
with the Alaska Constitution.
ATTORNEY GENERAL DESIGNEE TAYLOR answered yes.
CHAIR REINBOLD remarked that she sees it differently and found
numerous violations of the Alaska Constitution.
2:49:28 PM
CHAIR REINBOLD said she was a no vote regarding the disaster
declarations. She disagreed that the disaster declaration chaos
was the legislature's fault. She said the legislature was not
called into special session. She offered her view that the
legislature has the responsibility to write laws, but it was not
consulted on health mandates.
SENATOR SHOWER stated that he voted no on Senate Bill 241,
Extending COVID-19 Declaration Relief. He offered his view that
the legislature should have been engaged, but it was not. He
clarified he was not blaming individual legislators. However,
the legislature had the ability and the authority to take
action, but it did not.
CHAIR REINBOLD maintained her view that it was not the
legislature's fault.
2:52:13 PM
SENATOR KIEHL expressed concern with his interpretation that no
action by the legislature ends something. This seemed to imply
that if the legislature does not affirmatively act, the governor
could fill the void with whatever action he desired. He pointed
out that the governor had the power to convene the legislature.
However, by not exercising that constitutional power, the
governor set up a statutory consequence and acted contrary to
it. He asked him to identify the principle under which the
administration operates.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that he did not mean
to imply that legislative inaction allows the executive branch
or judiciary to act in any way it wants. However, there are some
instances where legislative inaction does have the force of law.
2:54:10 PM
CHAIR REINBOLD asked Mr. Taylor to come back before the
committee to address criminal law issues.
ATTORNEY GENERAL DESIGNEE TAYLOR agreed to do so.
2:54:52 PM
SENATOR HUGHES stated that she was on emergency leave when the
vote on Senate Bill 241 occurred. She offered her view that the
executive branch and the legislature must assume some
responsibility. The Alaska Disaster Act has been law for decades
and the legislature has not taken any action. She related that
she reviewed the statutes and the attorney general provides
advice and responds to legislative proposals. She said she is
grateful he is willing to work with the legislature.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that he would be
happy to do so.
2:55:33 PM
SENATOR REINBOLD said she did not vote yes on Senate Bill 241
due to her deep concerns about the bill. She asked if he would
review and evaluate during extraordinary times whether all
mandates the governor issues are based on the law to protect
civil liberties and for the good of the people.
ATTORNEY GENERAL DESIGNEE TAYLOR responded that is what he is
tasked to do, which he will do to the best of his ability.
2:57:20 PM
CHAIR REINBOLD opened public testimony on the confirmation
hearing for Treg Taylor.
2:57:43 PM
MIKE GERAGHTY, Attorney; representing self, Anchorage, Alaska,
stated that he is an attorney for an Anchorage law firm, Holland
& Hart, but he is representing himself today. He said he
previously served as attorney general for the Parnell
administration from 2012 to 2014. He said he hired Mr. Taylor
after graduating from law school in 2004. He worked as an
associate for the firm for approximately five years, during
which time he worked closely with him on some litigation. He
characterized Mr. Taylor as a hard worker, a good attorney and a
valued member of the firm. He left the practice to serve in the
private sector as an in-house attorney. He said he has always
known Mr. Taylor as an honest and ethical attorney. He always
tried to do the right thing. He offered his view that no one
comes into a job knowing all the answers. An attorney general
has the considerable resources of DOL to assist with any
decisions. He opined that Mr. Taylor would draw on that
knowledge. He opined that Mr. Taylor would not do anything to
tarnish the attorney general's office. He offered his support
for Treg Taylor and urged members to vote to forward his
confirmation.
3:00:42 PM
CHARLES MCKEE, representing self, Anchorage, Alaska, described a
personal dispute he wished the attorney general to consider that
had no relevance to the confirmation hearing.
3:02:59 PM
ANDREE MCLEOD, Good Government Director, Alaska Public Interest
Research Group, Anchorage, Alaska, spoke in opposition to Treg
Taylor. She stated that Mr. Taylor came before the House
Judiciary Committee twice. She offered her view that his
statements made clear that he should not be confirmed as
attorney general because of his insistence on violating Alaska
law, public trust and the trust of Alaskans. Although he makes
promises, his actions and repeated positions related to Ben
Stevens leaving the governor's office to work for Conoco
Phillips demonstrate that he either does not understand Alaska's
laws or he does understand them and has purposefully, willfully
and intentionally chosen to contradict these laws.
MS. MCLEOD said the laws in question are clear and simple. The
Alaska Executive Branch Ethics Act restricts certain activities
for employees who work in the governor's office when they leave
state service. It mandates restrictions of one or two years. A
governor may waive those restrictions by following a process. It
must be written and submitted to the attorney general for
approval or disapproval. Unfortunately, that was not done in
this case. Mr. Taylor insists it is not necessary until Mr.
Stevens believes he has a conflict of interest and contacts the
state to obtain a waiver. Many former employees have requested
waivers and followed the laws. These employees knew that an
appearance of a conflict of interest must be taken seriously and
that there are reasons for the required waiting periods. She
offered her view that Mr. Taylor misconstrued laws that were
passed to protect the public interest.
CHAIR REINBOLD stated that Ms. McLeod's time was up. However,
she could submit written comments to the committee.
3:06:34 PM
THERESA OBERMEYER, representing self, Anchorage, Alaska, said
Ms. McLeod covered many of the issues related to Ben Stevens.
She referred to AS 39.52.180 for specific ethical guidelines for
state employees, which she hoped members would review. She urged
members not to confirm Mr. Taylor.
3:08:37 PM
DAVID CARTER, representing self, Anchorage, Alaska, stated that
he is a retired attorney. He said Alaskans want and deserve
honesty, integrity and transparency from their elected officials
and senior executive branch officials. He said Alaskans want
their legislators and attorneys general to easily recognize and
reject conflicts of interest. Mr. Taylor moved from the Arctic
Slope Regional Corporation (ASRC) to the attorney general's
office and Ben Stevens moved from the governor's office to
Conoco Phillips. Mr. Stevens accepted $1,000 per week while he
was a sitting Senator. Alaskans do not want to reward that
behavior or those who look the other way. He urged members not
to confirm Treg Taylor as attorney general.
3:10:46 PM
JULIE SMYTH, representing self, Fairbanks, Alaska, said she is
an Inupiaq, raised in the foster care system in Fairbanks. She
has heard family members relate the impacts and struggles of
systemic racism and trauma. Her grandparents were sent away to
boarding schools. Laws can be written to target indigenous
people, such as Inupiat. Mr. Treg Taylor recently stated that
the March 16, 2021, shootings of six Asian women in Atlanta were
not racially motivated, that the shooter was having a bad day.
She urged members not to confirm Mr. Taylor.
3:13:49 PM
CHAIR REINBOLD closed public testimony on the confirmation
hearing for Mr. Taylor, Attorney General, Department of Law.
[The confirmation for Treg Taylor, the Governor's appointee as
attorney general was held in committee.
3:15:16 PM
There being no further business to come before the committee,
Chair Reinbold adjourned the Senate Judiciary Standing Committee
meeting at 3:15 p.m.
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