Legislature(1997 - 1998)
02/04/1998 01:08 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HJR 19 - ELECTION OF ATTORNEY GENERAL Number 0042 CHAIRMAN GREEN announced the first item of business, HJR 19, proposing amendments to the Constitution of the State of Alaska relating to the election and the duties of the attorney general. As prime sponsor of HJR 19, Chairman Green called upon staff member Jeff Logan to introduce the resolution. Number 0050 JEFF LOGAN, Legislative Assistant to Representative Joe Green, Alaska State Legislature, came forward to present HJR 19. The resolution had been scheduled for a hearing April 18, 1997; however, there was no quorum at that meeting. [Mr. Logan indicated on the record that there may have been brief testimony by Jim Baldwin, assistant attorney general for the state of Alaska, on that date. However, there is no tape for that meeting, and the minutes show the meeting was cancelled due to lack of a quorum. Mr. Baldwin informed the committee secretary on February 17, 1998, that he has no recollection of providing testimony on that date.] Number 0096 MR. LOGAN provided some background prior to the testimony of Grant Woods about how the system works in Arizona. Attorney General Woods is an elected attorney general, as are 43 other attorneys general. Arizona, a Western state like Alaska, entered the Union directly preceding Alaska's doing so, although several years before. Therefore, like Alaska, Arizona is a relatively young state. MR. LOGAN explained that they had not spoken directly with Attorney General Woods nor asked him to speak in favor of HJR 19. Instead, they had asked him to be available to help the committee understand how a system works where the people's chief law enforcement is elected rather than appointed; Attorney General Woods would also testify about what he sees as some of the merits and drawbacks. Number 0215 GRANT WOODS, Attorney General, State of Arizona, testified via teleconference from Phoenix, saying he believes there is a reason why 43 states elect their attorneys general. He believes a basic role of the attorney general should be providing an office that can truly represent the public's concerns across the board in applying the law, without regard for political pressure, and without regard for who may be pleased or displeased by a particular opinion. He emphasized the importance of applying the law evenly and the importance of the person in this position being free to make the call on the law without worrying about serving at the pleasure of anybody except the people who elected the attorney general. Number 0314 ATTORNEY GENERAL WOODS advised members that the Alaskan model is basically the same as the federal model, which people see the difficulty with today. Nationally, he said, we continue to struggle to find an answer to how to investigate the executive branch while maintaining the public's confidence in the integrity of the investigation when there is an appointed attorney general. ATTORNEY GENERAL WOODS said given that dilemma nationally, "we came up with this idea of a special independent prosecutor or counsel, and I think many people - and certainly I - feel that that's gotten totally out of control and ... not at all what our Founding Fathers or anybody had in mind, as far as the relationship between law enforcement and the executive branch." He suggested that is one problem inherent in the system where the chief law enforcement officer serves at the pleasure of the President, in the federal model, or the Governor, in the state model. Number 0439 ATTORNEY GENERAL WOODS told members he had served with two governors in Arizona, both of whom were in the Republican party, as he himself is. The former governor had numerous problems with the law that required investigation by Attorney General Woods and his office, as well as by the federal government. "He was just sentenced to 30 months in federal prison two days ago," Attorney General Woods added. He believes it was important, in dealing with a governor who needed to be investigated, that as attorney general he could be independent, with no particular ties to the governor, and could call it as he saw it. Number 0516 ATTORNEY GENERAL WOODS pointed out a big difference between how HJR 19 proposes the election of the attorney general and how most states do it. Section 29 indicates the attorney general would run on a ticket with a governor; a vote for the governor is also a vote for the attorney general. Attorney General Woods said he doesn't know whether anybody does it that way. While he believes it is preferable to an appointed system, it is clearly inferior to being totally independent. ATTORNEY GENERAL WOODS explained that in Arizona, candidates just run for the party's nomination in both offices. There can be a governor and an attorney general from two different political parties. Although candidates can state a preference or declare support for a particular governor or attorney general, nobody is bound by that. "And yet, you would be bound here under your proposal," he cautioned. "Maybe this is a compromise between the two systems; I don't know." ATTORNEY GENERAL WOODS said he clearly thinks that electing the attorney general puts it in the hands of the people. He suggested it would be better to simply eliminate that one particular part of this resolution so that whoever gets the most votes wins, regardless of whether they support or don't support the person who wins the governor's race. Number 0660 ATTORNEY GENERAL WOODS advised members that he is familiar with two other models. In Maine, the legislature elects the attorney general, which Attorney General Woods doesn't recommend, as it seems to be the most political. And in Tennessee, the supreme court appoints the attorney general for, he believes, an eight-year term; he said he thinks that is preferable to the system where the governor appoints but is clearly inferior to having an independent election by the people for their attorney general. Number 0708 CHAIRMAN GREEN commented that HJR 19 tries to avoid what has been characterized by some as almost a direct conflict. When he'd lived in California, it seemed there was always an attorney general from one party and a governor from another party who were adversarial. As a result, things didn't go as well as they might have. Chairman Green asked whether in Arizona there have been issues - other than the governor doing time - where the attorney general and the governor had contrary views even though they were from the same party. Number 0768 ATTORNEY GENERAL WOODS replied, "Well, definitely." He said in discussing this with the other attorneys general, he believes it depends less on party and more on personality and on the issues involved. He said he believes that many, many attorneys general would say they have actually have had a smoother time when there was a governor of the opposite party. He commented, "They just respected each other and got the job done." ATTORNEY GENERAL WOODS agreed that the problem Chairman Green mentioned is certainly possible; the governor is inevitably going to look at the attorney general as a potential opponent. He noted, however, that that happens even when the two are in the same party. ATTORNEY GENERAL WOODS said there will almost always be politics. An attorney general running on a ticket would provide some tacit understanding and would not be a political opponent of the governor. He commented, "So, maybe you would help solve that. But I think as far as people being in opposite parties, that doesn't necessarily mean anything. You could have lots of problems with people in your own party, or you might not have any problems with a person in the other party." Number 0861 REPRESENTATIVE ERIC CROFT asked what it costs to run a campaign for attorney general and where those campaign contributions typically come from. ATTORNEY GENERAL WOODS replied that he believes Arizona is an average state as far as expenditures. To run for governor there, an average expenditure would be $2 million. To run for attorney general in 1990, he himself had spent around $400,000; in 1994, he'd had weak opposition and therefore hadn't spent any money or even put up a sign. He added, "In 1998, this race to succeed me, I think they will probably spend around $400,000; so, I think that's about what you're looking at here." ATTORNEY GENERAL WOODS advised members that contributions come primarily from lawyers and special interest groups that contribute to "whoever is in the game, basically, legislators or governors or anybody else that might be able to help them, they think, at some point in time." He said he believes the difference in an attorney general race is that "you see an awful lot of lawyers contributing; they're interested." Number 0963 REPRESENTATIVE BRIAN PORTER asked whether Arizona became a state with that in its constitution. ATTORNEY GENERAL WOODS said Arizona has always had an elected attorney general. REPRESENTATIVE PORTER asked whether that is the usual situation. ATTORNEY GENERAL WOODS said he doesn't know the answer. He then specified that he doesn't know of any state which has changed from having an elected attorney general to having an appointed one. Number 1011 REPRESENTATIVE ETHAN BERKOWITZ said he was thinking of an attorney general who graduated to become governor and is now President of the United States. He expressed concern that when an elected attorney general has political aspirations, politics might somehow cloud the decision making. ATTORNEY GENERAL WOODS replied that he thinks that is certainly a risk. As with any other elected office, the occasion is there to play politics with whatever situation the person is confronted with. He suggested it would be unrealistic to say that somebody would just be oblivious to the politics of a situation. He explained that what he has tried to do, which he believes is the best model, is to not take the politics into consideration but to be aware of the politics, "so you know what you're getting into, but you go ahead and do it anyway, regardless of the consequences." ATTORNEY GENERAL WOODS stated, "Having said that, there are some elected attorneys general who are extremely political." He said given that they deal on the criminal side with people's lives and freedom, that is a difficult situation. And on the civil side, they deal with a lot of money and people's basic rights; that's not a great situation, either. Number 1096 ATTORNEY GENERAL WOODS pointed out, however, that the vast majority of criminal actions around the country are prosecuted by district attorneys and county attorneys, almost all of whom are elected. Sheriffs are generally elected, as well. Attorney General Woods commented that yes, that invites politics, and politics does get in the way sometimes. But he believes that is outweighed by the desire that most states have to let the people make these decisions. ATTORNEY GENERAL WOODS also pointed out that the role of the attorney general in most states, including Alaska, has evolved greatly, especially in the 1990s. At the time of Alaska statehood and in the following decades, the attorney general was really more of a lawyer doing the state's work, without getting involved in that many issues which Attorney General Woods believes that the public would be interested in. Now, however, most attorneys general are involved in consumer protection in a major way. ATTORNEY GENERAL WOODS noted that Alaska is one of the states that has sued the tobacco companies and has been involved in a variety of consumer issues. He said many attorneys general are involved in environmental, civil rights and victims' rights issues, which he thinks is important because those issues are more directly related to the public's desires; it is easier to campaign upon those themes and to give the public a choice as to what they want from the office than if the role of the attorney general is to just do the legal paperwork for the state, in which case the public doesn't necessarily know who the best lawyer is. ATTORNEY GENERAL WOODS concluded, "But if you're talking about these sort of issues, and whether or not you're interested in those issues, then I think the public should have a say in whether Alaska, for example, is going to be very active in consumer protection from the attorney general's office or not. And that would depend on who was there." Number 1246 REPRESENTATIVE BERKOWITZ referred to Attorney General Woods' mention of policy decisions made by an elected attorney general. He stated, "And the way it's set up in Alaska now, that's something within the purview of the governor, subject to the check and balance of the legislature. But it seems to me that when you have an elected attorney general, you've in essence created a fourth branch of government outside the control of the governor but still subject somewhat to ... the budgetary constraints of the legislature." ATTORNEY GENERAL WOODS replied that the legislature definitely has the ability to constrain the attorney general's actions or to encourage or require the attorney general's actions in certain areas. He explained, "You will always control the budget. As long as you don't cross the line in basically getting rid of the office or in usurping all the normal powers and duties of an attorney general's office, then it would be up to you." ATTORNEY GENERAL WOODS told members that Arizona has a very conservative Republican legislature. However, the people view civil rights as an American issue, not a liberal-versus-conservative or Republi they've given us jurisdiction here in the '90s to do fair housing, for example, to do ADA [Americans with Disabilities Act] on a state -- have the state do that prosecution, rather than relying on the feds totally. That was up to them. If they would say 'no' on that, then we couldn't do that. So, ... I think the legislature will always have a key role in determining what the attorney general is or is not allowed to do. There is some room there, though, definitely, to make policy. I have emphasized some areas that my predecessor did not and my successor may not. And I think ... that is what's decided by the electorate." Number 1354 CHAIRMAN GREEN referred to the possibility of politics entering into the position. He asked, "What about the other seven AGs that are appointed by the governors? Do you find that in any of those cases, the attorneys general may be responding to the wishes of the governor, at some times at odds with the wishes of the people that he would otherwise be representing?" Number 1381 ATTORNEY GENERAL WOODS said there have been cases of that many times in individual states' histories, "in that you didn't really have anybody to stand up for the people's interest, as reflected in either the Constitution of the United States or of the particular state or of the laws of that state, because it was at odds with a particular policy or a particular interest of the governor." He said that is a difficult situation, leading to the choice of either resigning or "just doing what you're told." ATTORNEY GENERAL WOODS said that again, he thinks it is a better situation in Tennessee, where the supreme court makes the appointment, because then there is independence to do what the law requires. Number 1442 CHAIRMAN GREEN referred to the other 43 states and asked: If the attorney general for the state is an elected official, who represents the governor? He further asked what happens if there are two different legal opinions, between the attorney general perhaps representing the people and a special counsel for the governor or the administration. ATTORNEY GENERAL WOODS replied that the attorney general is a lawyer for the state; therefore, the attorney general would determine the position for the state of Arizona, for example. He said they had just allowed, in the l990s, the governor to have his own private counsel, one lawyer; Attorney General Woods said he'd supported that, but he noted that in many states, more than one lawyer has been allowed. He explained that this private counsel is someone that the governor can confide in without worrying about politics, leaks, or things of that nature. He stated, "If the governor's counsel today in Arizona comes up with an opinion - on a particular issue concerning the governor - different than the attorney general's opinion, then it really doesn't matter. It's the attorney general's opinion that counts." ATTORNEY GENERAL WOODS noted that in addition, the attorney general determines the state's position in regards to litigation. Although he would hope that would be done - on particular issues - in consultation with the legislature and the governor, ultimately it is the attorney general's call. He added, "And, again, that is regardless of whether the governor likes it or doesn't like it." Number 1539 ATTORNEY GENERAL WOODS said they had a situation in Arizona involving school capital finance, an issue which many states have faced. While the superintendent of schools took one position, the former governor and the legislature took another position in relation to a lawsuit filed by a special interest group. The superintendent basically agreed with the plaintiff, and the legislature and the governor thought there really wasn't a problem. ATTORNEY GENERAL WOODS stated, "In that case, technically I could have chosen to (indisc.) the governor and the legislature to be unrepresented, because I chose to represent the superintendent of schools. But it seems to me that would have been unfair, so we allowed them to hire their own counsel to represent their positions; and they did, and they argued their case and that went on. They lost, but ... they at least got to make their argument." Number 1589 REPRESENTATIVE PORTER indicated he was operating under an assumption that in Arizona - as he assumes it is with other states that have an elected attorney general - the department of law handles all the civil litigation for the state, as in Alaska, and the criminal prosecution for the state would be under the attorney general's office. ATTORNEY GENERAL WOODS said that is correct. Number 1614 CHAIRMAN GREEN asked whether in Arizona, then, there is a department of law serving the attorney general as well as a department of law serving the administrative side. ATTORNEY GENERAL WOODS replied, "No, that's us as well. Everything is under us. We've done a pretty good job ... at keeping the attorney general's office intact." He noted that many states allow agencies to have their own counsel; he said that is an age-old debate. He stated, "Although we have a couple of exceptions that have happened over the years, for the most part the agencies ... are represented by the attorney general's office. The attorney general's office does basically everything here. There's a couple of exceptions that have snuck through - not on my watch but in years past. But you should realize that we have a population here of something like - it's growing so fast - let's say 4 million people." He said they have around 300 lawyers, and it is one of the larger such offices in the country. Number 1679 REPRESENTATIVE BERKOWITZ asked, on behalf of Representative Croft, who was having difficulty speaking because of illness, what other statewide officers are elected in Arizona. ATTORNEY GENERAL WOODS answered that they are all elected, including a secretary of state. He commented, "They don't do much except succeed the governor [there was laughter], which in Arizona is a pretty big deal because that's happened four times in the last 20 years, unbelievably, and it just happened again. Our new governor was the secretary of state. ... They have administrative duties, notaries and things like that. But that is, again, independently elected, so you could have a situation where if a governor had to leave, then the person to succeed him would be someone in the other party." ATTORNEY GENERAL WOODS advised members that also independently elected are the attorney general, the state treasurer, the superintendent of public instruction, and three corporation commissioners who "do utilities and the like." He added that for some reason, they have a state mine inspector who is on the ballot as well. He mentioned that all the statewide offices are currently held by Republicans. Number 1768 CHAIRMAN GREEN noted that some states elect both the governor and lieutenant governor independently. He asked how that is done in Arizona. ATTORNEY GENERAL WOODS explained that Arizona doesn't have a lieutenant governor. The secretary of state runs on his or her own, and may or may not wind up being in the same party as the governor. For example, during Attorney General Woods' first term and the former governor's first term, the secretary of state was a Democrat. He ran for the United States Senate instead of running for re-election. However, had he not done so, that person would be governor today. Attorney General Woods commented that he favors the lieutenant governor idea, especially in a state like Arizona, where they keep having these successions. Number 1823 CHAIRMAN GREEN asked how Attorney General Woods would describe the relationship between law enforcement and himself, as an elected attorney general, as opposed to those few attorney generals who are appointed. He also asked whether Attorney General Woods had received any feedback from the latter. ATTORNEY GENERAL WOODS answered that he doesn't think it makes much difference there. In Arizona, the majority of people in charge of law enforcement agencies are elected, meaning district attorneys and sheriffs and the like. He stated, "Now, local police and city police chiefs, the state police - those are all appointed positions." He said just because someone is appointed or elected, it doesn't mean that person is competent; it depends on the situation and the personality of the person involved. He restated that he doesn't think it makes much difference around the country whether the attorney general is appointed or elected. "It's like anything else," he added. "You deal with whoever you've got to deal with to get the job done." ATTORNEY GENERAL WOODS advised members that many attorneys general around the United States do not have criminal jurisdiction. Many do no criminal work other than appellate work. For example, in Alaska, the attorney general is involved in all aspects of criminal prosecution, he said. In Arizona, however, they have defined areas where they do original prosecution, mainly white collar crime, public corruption and a few other areas; but almost all of the street crime is done by district attorneys and not by the attorney general's office. Number 1920 REPRESENTATIVE NORMAN ROKEBERG asked how many personal lawyers the governor of Arizona has. ATTORNEY GENERAL WOODS said she is only supposed to have one, which is the case. While the former governor had lots of lawyers around town and around the country, they were private; the taxpayers only provided one lawyer for him. Attorney General Woods pointed out that there are ways around that, such as hiring lawyers as staff without calling them lawyers; while he doesn't think that is preferable, he does think the governor should be able to have a lawyer on staff to provide personal advice. Other than that, the attorney general should be the person who makes the legal calls for the state. ATTORNEY GENERAL WOODS commented, "The governor's got plenty to do. They tend to want to do everything, everything that has anything whatsoever to do with the state, but there are defined duties for the governor, and I would think that would be plenty if they'd just stick with those." Number 1985 CHAIRMAN GREEN asked whether there were other questions, then thanked Attorney General Woods for taking time to address the committee. ATTORNEY GENERAL WOODS concluded by telling members he had worked closely with several attorneys general in Alaska. He expressed confidence that those people could be elected in their own right, and he said he is a big fan of the current attorney general. He added, "You all have done so many great, innovative things. And I would just urge you to take a hard look at this one and ultimately put your faith in the public to be able to discern who the best candidates are. And I think generally, as in other areas, they'll do the right thing." Number 2039 HERB SIMON testified via teleconference from Nelchina, expressing gratitude for Attorney General Woods' enlightening comments. He said he wonders why it has taken the state of Alaska so long to put this together; as a longtime Alaskan, he has believed for a long time that the state should elect the attorney general. MR. SIMON advised members that he had reviewed HJR 19, as well as the companion Senate bill, which he said is identical; he stated his belief that it would get the job done. However, he had passed on comments to Kevin Jardell, legislative assistant to Representative Green, the previous day. MR. SIMON told members he believes the language is ambiguous on page 2, line 24. He recommended changing it to incorporate that the attorney general shall defend the Constitution of the United States and the Constitution of the State of Alaska, which he believes would eliminate ambiguity. Mr. Simon then referred to Attorney General Woods' testimony and said there is a tendency at times for an appointed attorney general to support political agendas regardless of personal civil rights issues or state constitutional issues. He specified that that is the only criticism he would have for this legislation. MR. SIMON strongly recommended that both the Senate and House versions be put on fast-track. He said he wished it could have been done the previous year, so the state could elect an attorney general this coming November. CHAIRMAN GREEN asked Mr. Simon what his affiliation is. MR. SIMON replied that he is the owner and operator of Little Nelchina Farm in Nelchina. Number 2179 CHAIRMAN GREEN announced HJR 19 would be held over. Number 2201 REPRESENTATIVE ROKEBERG asked whether there would be testimony on the fiscal note when it was brought up again. CHAIRMAN GREEN said yes, adding that he didn't necessarily subscribe to the existing fiscal note. [HJR 19 was held over.]
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