Legislature(2013 - 2014)CAPITOL 120
03/03/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB269 | |
| HJR18 | |
| HB284 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HJR 18 | TELECONFERENCED | |
| += | HB 284 | TELECONFERENCED | |
| += | HB 269 | TELECONFERENCED | |
HJR 18-CONST. AM: ELECTED ATTORNEY GENERAL
1:21:21 PM
CHAIR KELLER announced that the next order of business would be
HOUSE JOINT RESOLUTION NO. 18, Proposing amendments to the
Constitution of the State of Alaska relating to the office of
attorney general.
CHAIR KELLER opened public testimony.
1:21:51 PM
DARRELL BREESE, Staff, Representative Bill Stoltze, Alaska State
Legislature, speaking on behalf of the sponsor Representative
Stoltze, specified that HJR 18 allows Alaskan voters an
opportunity to determine whether they prefer to elect the
position of Alaska's attorney general, and advised he is
available for questions.
1:23:07 PM
REPRESENTATIVE LYNN directed attention to the following
potential amendment, which read:
Page 2, lines 6-7:
Delete all material and insert:
"(b) A person who has been elected attorney
general is subject to the same limit on tenure as the
governor under Section 5 of this article."
REPRESENTATIVE LYNN explained in the event term limits change
from governor to governor or a future legislature changes the
terms of the governor, this amendment allows the term limits of
the attorney general to run [parallel] to those of the governor.
He related that while he had considered requiring the candidate
for attorney general be of the same political party as the
governor, Legislative Legal and Research Services advised that
may not be an option as that would necessitate the attorney
general being on the same ticket as the governor and lieutenant
governor. Representative Lynn said his motion is that the
governor and attorney general be of the same philosophical
background on various issues, of which being of the same party
would help.
1:25:06 PM
REPRESENTATIVE LEDOUX suggested changing the language on page 2,
line 1, that says "meets the qualifications for a superior court
judge" to "a member of the Alaska Bar in good standing" or "a
licensed attorney in the State of Alaska." She said she didn't
see the need [for the attorney general to have to] meet the
qualifications of a superior court judge. Requiring a
prospective attorney general to meet the qualification of a
superior court judge would result in a discussion as to whether
he/she would need approval by the Alaska Judicial Council, which
she opined, wasn't the intent of the sponsor.
1:26:26 PM
REPRESENTATIVE GRUENBERG requested that the Legislative Legal
and Research Services drafter that advised Representative Lynn
be available to discuss his/her reasoning [requiring a candidate
for attorney general be of the same party as the governor].
1:28:02 PM
The committee took an at-ease from 1:28 p.m. to 1:31 p.m.
1:32:13 PM
REPRESENTATIVE PRUITT articulated that unless [legislation]
violates the U.S. Constitution, the Alaska State Legislature can
legislate whatever it desires for the Alaska State Constitution.
1:32:57 PM
MR. BREESE called attention to the Alaska State Constitution,
Article 3, Section 8, which read:
§ 8. Election
The lieutenant governor shall be nominated in the
manner provided by law for nominating candidates for
other elective offices. In the general election the
votes cast for a candidate for governor shall be
considered as cast also for the candidate for
lieutenant governor running jointly with him. The
candidate whose name appears on the ballot jointly
with that of the successful candidate for governor
shall be elected lieutenant governor.
MR. BREESE opined that the language amending the Alaska State
Constitution regarding the attorney general position could be
similar.
1:33:29 PM
REPRESENTATIVE MILLETT surmised then that the governor,
lieutenant governor, and attorney general would run on a three-
person ticket and all of the same political party.
MR. BREESE stated his agreement with Representative Millett.
1:33:54 PM
REPRESENTATIVE GRUENBERG related that Attorneys General Avrum
Gross and Bruce Botelho were very successful and were not of the
same political party as the governor under which they served.
He warned the committee to not "over legislate."
1:34:38 PM
REPRESENTATIVE PRUITT, regarding whether all three positions
could potentially run on the same ticket, reminded members that
the legislature [through the language of the resolution] can
specify whether all three individuals run on the same ticket or
on separate tickets. Furthermore, the legislature can specify
whether all three positions have to be of the same party, but
not necessarily on the same ticket. He opined, however, that it
would almost be a de facto that they would be on the same
ticket.
REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, sponsor,
advised that the tenor of the debate of the previous committee
was for the attorney general to be "a third leg" on a ticket.
He related that he is not "hyper-excited" that the position be
an extension of a partisan ticket as that seems to defeat the
purpose of HJR 18, which he characterized as having a people's
attorney general. He offered that the legislature has the
opportunity and responsibility to choose the best route for the
attorney general position.
1:37:13 PM
REPRESENTATIVE MILLETT highlighted that the Alaska
Constitutional Convention minutes include the exact debate on
this issue as the committee is having. She found it an
interesting concept to have an elected attorney general of any
party, who does not run on a ticket and is truly independent,
offer his/her independent opinion. The Alaska Constitutional
Convention minutes include remarks that if the attorney general
is elected it may cause havoc for the governor and the
governor's agenda. She then expressed concern that if Alaska
had a democratic governor and lieutenant governor and a
republican attorney general, the legislature would receive two
differing opinions plus opinions from the legislature's
attorneys. Representative Millett noted that she favors having
tension between the legislature and the governor as legislation
may turn out for the better. She then offered her agreement
with Representative Stoltze in that an independent attorney
general should run separately otherwise it's no different than
the existing situation.
1:40:34 PM
CHAIR KELLER submitted that this is the people's document and
the difference between the Alaska Constitutional Convention
minutes and the House Judiciary Standing Committee now is that
this committee consists of legislators who appreciate vetting
issues which allows a member the opportunity to recognize
differing points of view. In the end, he opined, [HJR 18] is
simply placing before the voters of Alaska the proposal to elect
the attorney general.
1:41:29 PM
REPRESENTATIVE LEDOUX, referring to a blue and red handout,
noted the vast majority of states with an elected republican
governor have a republican attorney general and vice versa,
which she attributed to the state being a red or blue state.
The thought that there may be conflicting ideas based upon
opposing political parties or even within the same political
party indicates there is no real rationale in mandating the
attorney general be of the same party as the governor, she
opined.
1:43:06 PM
REPRESENTATIVE STOLTZE informed the committee that during the
time of the Alaska Constitutional Convention there was an
elected attorney general and an appointed governor, although the
convention minutes complained there were not enough lawyers or
people in Alaska willing to run for attorney general. He
highlighted that elected Attorneys General Ralph Rivers and J.
Gerald Williams both served ten years and John Ruslgard served a
total of thirteen years under three governors. The
aforementioned illustrates incredible stability and tenure of
the position of attorney general, which notably exceeds the term
limits proposed within HJR 18.
1:45:49 PM
REPRESENTATIVE MILLETT questioned Mr. Breese as to whether he
had reviewed any antagonistic difficulties for the legislatures
or state governments of the 11 states in which the governor and
attorney general are of different political parties.
MR. BREESE responded he had not specifically performed that
research.
1:46:46 PM
REPRESENTATIVE GRUENBERG recalled that certain governors and
lieutenant governors [of other states] have declined to support
the state legislation or its constitutional provisions regarding
sexual orientation. In the event the governor and attorney
general are elected independently and do not agree [upon an
issue] the attorney general may decide to take the opposite
position in order to obtain political points, he opined.
1:48:51 PM
REPRESENTATIVE PRUITT pointed out there are certain limitations
on the governor, such as tenure and dual office holding, and he
pondered whether those limitations should apply to the attorney
general as well.
1:49:55 PM
REPRESENTATIVE MILLETT queried whether the attorney general
would have the same term limits as the governor and lieutenant
governor.
MR. BREESE explained that as HJR 18 is written, the term limits
are for a four-year period, which is the same as the governor,
with a maximum of two terms served consecutively and the
individual must sit out a term before running for the office
again. There is no limit on the total amount of terms. The
earlier amendment mentioned language which would result in the
attorney general position having the same term length as the
governor should the legislature and the Alaska State
Constitution change the number of years a governor serves.
Therefore, the attorney general's term length would be the same
as the governor, but the limit of two consecutive terms would
remain.
1:52:16 PM
CHARLES COLE, drawing from his experience as Governor Walter
Hickel's appointed attorney general from December 1990-February
1994, recommended leaving the position of attorney general
appointment by the governor as it is and noted he had not made a
study of this issue in other states. He opined that the ability
to obtain a highly qualified attorney general under the present
system has been overlooked in the discussions. He then
highlighted the importance of the attorney general in the State
of Alaska, particularly in view of the problems Alaska has with
the federal government, and that Alaska is a new state still
finding its footings. Therefore, it is highly important for the
governor to have the authority to appoint the best and well-
qualified attorney general who is willing to accept the
sacrifice and also is well qualified to discharge the duties and
responsibilities of the office. When an attorney general is
elected, as in other states, the individual may have a fine
ability to be elected but not necessarily to act as attorney
general.
1:55:05 PM
MR. COLE related his impression that there is not much actually
gained by the attorney general and governor being of the same
party, but rather the importance of the governor and attorney
general maintaining a close working relationship. He noted that
problems and subjects come up almost daily in which the attorney
general and governor must act jointly. For example, the
lawsuits that were filed by the State of Alaska against the
North Slope producers for taxes owed to the state. The
Department of Law (DOL) worked steadfastly on those cases and it
came down to the governor deciding whether to accept the
settlement proposals reached by the Department of Law and
producers. If, at the time, Alaska had an attorney general
running for office who desired to continue litigating so as to
get a feather in his cap by successfully litigating against big
oil and a governor who wanted to settle the case there would
have been conflicts in whether that settlement should be
accepted, he opined. Seemingly, he noted, in other states a
large percentage of attorneys general are anxious to run for
governor in the next election. Decisions come up constantly and
it is just very important that the working relationship between
the governor and attorney general be preserved. He suggested as
attorney general if he had coveted running for governor against
Governor Hickel essentially Alaska would have had a
dysfunctional government. Therefore, he questioned how an
attorney general running for office against an elected governor
could work effectively. There is no question the attorney
general is the Alaskan citizens' attorney which he noted was
constantly on his mind and which he made very clear to Governor
Hickel. He recalled there were times he had to make decisions
that were not necessarily in accord with the governor's view,
but that is the way the system works and that's the way it did
work. Mr. Cole, acknowledging the difficulties of the existing
system, recommended leaving the system as it is and reiterated
that the attorney general and governor must have a very close
working relationship for the appointed system to work, which has
worked and does work.
1:58:51 PM
REPRESENTATIVE MILLETT proffered that Alaska is dealing with
federal government overreach on a regular basis and noted that
Attorney General Michael Geraghty has been active because of the
direction of Governor Parnell to file amicus briefs and continue
pushing back hard on the federal government. She inquired as to
who takes precedence in a scenario in which Alaska's governor
decides to file a lawsuit against the federal government over
loss of lands, oil development, resource development, or land
conveyances and the elected attorney general is opposed to the
lawsuit.
MR. COLE advised that other than a situation that is a matter of
principle or the attorney general's interpretation of the law,
the attorney general takes his/her directive from the governor.
On the other hand, he explained that if the attorney general
refutes the governor, the governor could appoint a special
counsel to represent the interests of the state. He then
offered a reverse situation in which the governor chooses to
take action against the United States Environmental Protection
Agency (EPA) and the elected attorney general is a member of the
Sierra Club. Such situations in which there are political or
differing philosophies between the elected attorney general and
governor can result in greater problems than in the rare case
the governor decides on an action and the appointed attorney
general politely declines, he opined.
2:01:32 PM
REPRESENTATIVE MILLETT surmised the governor cannot compel an
elected attorney general to perform in a certain manner.
MR. COLE recalled a case in California wherein the governor gave
directions to the attorney general, who then reminded the
governor that he is an elected attorney general and couldn't be
told what to do. He also recalled when he worked for elected
Attorney General Jay Gerald Williams there was a year the
attorney general was outside of the state for over 300 days. An
elected attorney general is not necessarily a cure-all, he
opined.
2:02:50 PM
REPRESENTATIVE LEDOUX, recalling Mr. Cole's comment that having
an elected attorney general and an elected governor leads to
dysfunctional government, and asked regarding the 45 states with
elected attorneys general - whether by the voters, legislature,
or Supreme Court are in utter chaos and dysfunction as compared
to Alaska.
MR. COLE reiterating he had not studied that issue clarified he
could easily see how, in state government, there could be
dysfunctional relationships between the governor and an
[elected] attorney general. He recalled his time as attorney
general during which he often dealt with commissioners who were
appointed by the governor to carry out the governor's philosophy
of government. Mr. Cole surmised that had he been an elected
attorney general running for re-election or running for
governor, he would not have had the same "comfortable"
relationship with Governor Hickel's commissioners. He, again,
reiterated that close working relationships are important in the
day-to-day issues. Although hard problems develop in any
relationship, mutual confidence and respect between the attorney
general and governor result in a far better relationship than
one of conflict.
2:05:49 PM
REPRESENTATIVE MILLETT conveyed that she struggles with the
federal government owning 65 percent of Alaska's lands and
questioned if the issues existing between Alaska and the federal
government would have an effect on the interaction between the
governor and an elected attorney general regarding environmental
issues and development. She asked if the high percentage of
federal lands and issues with the federal government would be
another hindrance to an elected attorney general.
MR. COLE responded that it is important for the attorney general
and governor to have the same political philosophy when
litigation is involved.
2:07:27 PM
REPRESENTATIVE GRUENBERG, suggesting that a few of Mr. Cole's
comments have been "cloaked" in the term "conflict of interest,"
requested Mr. Cole describe the nature of the attorney-client
relationship, specifically between an appointed attorney general
and governor and an elected attorney general and governor. He
questioned how an elected attorney general would impact the
governor's [authority] to fire the attorney general if a
difference of opinion arose. He specifically requested Mr. Cole
respond to these questions from the Canons of [Professional]
Ethics point of view.
MR. COLE recalled a situation wherein Governor Hickel directed
him to sue the principals of ExxonMobil for damages to the
environment with a settlement in the amount of $1 billion. Mr.
Cole said he understood it was his duty as the appointed
attorney general to accept direction from the governor, which
was to seek damages to remediate the damage to the environment,
and to also carry out the governor's philosophy of his terms of
that litigation. When a settlement number was tentatively
reached, he discussed it with the governor and due to their
close working relationship Governor Hickel decided the number
was acceptable and the litigation was concluded on that basis.
Had they not had the [mutual trust], the state could still be
litigating that case, he opined. The same is true with the
settlement negotiations for the several billions of dollars in
unpaid taxes against the North Slope producers. The settlement
came as a result of hard work by very capable lawyers in DOL and
his relationship with Governor Hickel. He explained that had he
been seeking re-election as attorney general or running against
Governor Hickel he did not believe they would have achieved the
results they satisfactorily achieved. He opined there is a
reason Alaska does not want personal or political conflicts
between the attorney general and governor. In addition, Alaska
profits by allowing the governor to appoint a first rate
attorney as it is essential to have the best qualified attorney
general, he opined.
2:13:25 PM
REPRESENTATIVE GRUENBERG summarized Mr. Cole's statement in that
lawyers and judges are a different breed of people from those in
the legislature and there are many lawyers who would be very
good judges and attorneys general but "lousy" politicians, and
vice versa. He further surmised that Mr. Cole believes the
state would be best served by the best lawyers in the position
of attorney general.
MR. COLE agreed and pointed out that the attorney general is
responsible for vast duties in Alaska. In fact, the attorney
general's name is on every felony indictment issued by grand
juries in the state. The attorney general carefully appoints
and monitors the hiring of all district attorneys and assistant
attorneys general to ensure that Alaska hires the best
prosecution to which law enforcement officers and the people of
Alaska are justly entitled, he explained. The aforementioned,
he opined, is achieved by lawyers who have criminal law
experience being in the position of district attorneys and
assistant attorneys general. It is also important, he opined,
for the attorney general to have trial and litigation experience
as the state is involved in extensive litigation and he/she must
also possess the ability to evaluate litigation. For example,
when Alaska and the federal government were jointly litigating
Exxon Valdez [class action Exxon Shipping Co. v. Baker, 554 U.S.
471 (2008)] and the plaintiffs' attorneys [which included the
federal government] intended to prove damages by "some sense of
contingent valuation," he exercised his experience as attorney
general and advised the plaintiffs, "We just are not going to go
to trial on a contingent valuation while Exxon and its co-
defendants ... hired the most highly qualified economist in the
world." He recalled that the state endured multiple problems
with the Agricultural Revolving Loan Fund (ARLF), which resulted
in the state litigating and carefully monitoring cases in which
hundreds of thousands of dollars were owed to the people of
Alaska. The aforementioned responsibilities are in addition to
writing legal memoranda and proofs and advising the legislature
[and governor]. He then pointed out that the legislature's
confirmation process is a protective mechanism that political
forces in the legislature can exercise in ascertaining whether
the governor's appointed attorney general is qualified. He
emphasized that at the end of the day the people of Alaska pay
the price when the system relies upon an attorney general who is
not the best qualified lawyer, but is colorful enough to get
elected. Therefore, he reiterated his support for keeping the
existing system of electing the state's attorney general.
2:19:07 PM
REPRESENTATIVE LEDOUX inquired as to the criminal law experience
of current Attorney General Michael C. Geraghty, and former
Attorneys General Dan Sullivan and Dave Markus.
MR. COLE pled the Fifth Amendment.
2:20:40 PM
REPRESENTATIVE PRUITT questioned the ramifications from the
governor's perspective if the state moved to an elected attorney
general. He surmised there would be more costs than simply
putting a name on a ballot in that the governor would require
hiring his/her own attorneys for advice as there would not
necessarily be trust between the governor and an elected
attorney general.
MR. COLE responded that it is not so much a matter of economics
as it is conflicting opinions and upon whose opinion the
governor relies. Mr. Cole expressed he does not trust that the
people of Alaska are well served with conflicting attitudes or
political philosophies and maintained the state should have one
attorney general who heads the Department of Law.
2:22:50 PM
REPRESENTATIVE PRUITT drawing from presidential history and the
history of other states, he opined that difficulty is created
for the executive at the top level when a member of his/her
cabinet plans to become president or governor. He further
opined that [electing the attorney general] is a counter-
productive measure because it could cloud the judgment of the
attorney general when that attorney general's goal is to [run
against the governor]. Furthermore, Alaska is a resource
development state [that almost demands] a corporate lawyer whose
goal is solely focused on the state. He commented that he
struggles with changing [to an elected position].
MR. COLE agreed that it is a huge problem and suggested that a
governor who thought his attorney general was planning on
running against him in the next election would likely believe
that attorney general's goal was really what would best further
his chances of re-election.
2:25:42 PM
REPRESENTATIVE GRUENBERG highlighted the need for the governor
to trust the attorney general and vice versa, as it works both
ways in an attorney-client relationship. He then requested that
Chair Keller advise the committee of his intentions for HJR 18
as he would like to invite the following to testify: Alaska
Constitutional Convention delegate and former Lieutenant
Governor Jack Coghill [under Governor Walter Hickel], and former
Attorneys General Tallis Colberg [under Governor Sarah Palin],
Av Gross [under Governor Jay S. Hammond], Norm Gorsuch [under
Governor William A. Egan], and Grace Berg Schaible [under
Governor Steve Cowper]. He further requested that issues,
unless minor changes, are taken up as amendments rather than
being molded into a committee substitute in order to exactly
review each change.
CHAIR KELLER announced HJR 18 would be held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB269 Proposed Amendment C. 1.pdf |
HJUD 3/3/2014 1:00:00 PM |
HB 269 |
| HB 269 Support Document~Medical Boards and Temporary Licenses or Permits.pdf |
HJUD 3/3/2014 1:00:00 PM SL&C 3/27/2014 1:30:00 PM |
HB 269 |