Legislature(2013 - 2014)CAPITOL 120
03/14/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HJR18 | |
| HJR33 | |
| HB127 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 127 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HJR 18 | TELECONFERENCED | |
| += | HB 205 | TELECONFERENCED | |
| += | HJR 33 | TELECONFERENCED | |
HJR 18-CONST. AM: ELECTED ATTORNEY GENERAL
1:12:22 PM
CHAIR KELLER announced that the first order of business would be
HJR 18, Proposing amendments to the Constitution of the State of
Alaska relating to the office of attorney general.
1:12:55 PM
REPRESENTATIVE GRUENBERG requested that testifiers be allowed to
speak as amendments are offered.
1:13:27 PM
CHAIR KELLER closed public testimony.
1:14:06 PM
[Due to technical difficulties, there is no audio from 1:14:09-
1:14:19, 1:14:28-1:14:44.]
1:14:45 PM
REPRESENTATIVE LEDOUX moved to adopt Amendment 1 to HJR 18,
labeled 28-LS1216\A.3, Bullard, 3/12/14, which read:
Page 1, line 16:
Delete "not"
Page 2, line 1:
Delete "unless the person meets the
qualifications for a superior court judge"
Insert "if the person is licensed to practice law
in the State"
1:15:43 PM
REPRESENTATIVE GRUENBERG objected.
1:15:54 PM
REPRESENTATIVE LEDOUX referred to page 1, line 16, through page
2, line 1, which read: "A person is not eligible to serve as
attorney general unless the person meets the qualifications for
a superior court judge." She explained that Amendment 1 allows
an individual to serve as attorney general if he/she is
"licensed to practice law in the State." She noted the sponsor
considers Amendment 1 a friendly amendment.
REPRESENTATIVE GRUENBERG maintained his objection.
1:16:52 PM
REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, prime
sponsor of HJR 18, indicated his agreement that Amendment 1 is a
friendly amendment and is an attempt to improve HJR 18. He
opined that there was confusion regarding qualifications of a
superior court judge as some thought it would invite the Alaska
Judicial Council process. For the most part, he opined that the
qualifications and experience are adequate and is certainly
higher than for other important offices. An [attorney general]
must be 30 years old, a citizen of the United States, have lived
in Alaska 7 years, and not be a felon. Alaska's chief executive
has a much lower threshold and has the judgment to appoint the
attorney general, he pointed out.
1:18:36 PM
CHAIR KELLER clarified that Amendment 1 removes the word "not"
on page 1, line [16], and changes the qualifications for
attorney general to be "licensed to practice law in the State."
Whereas the original language required the qualifications be
that of a superior court judge.
1:19:10 PM
REPRESENTATIVE LYNN surmised that if the committee adopts
Amendment 1, any individual licensed to practice law in Alaska
could be elected attorney general with the vote of the people.
REPRESENTATIVES STOLTZE and LEDOUX responded "yes."
REPRESENTATIVE LYNN related his understanding that within the
current structure the governor has the opportunity to vet the
qualifications of whoever he/she might appoint as attorney
general. However, voters do not have the same opportunities to
interview or compare applicants [as the governor]. Therefore,
he suggested there should be a higher standard. He then stated
his opposition to Amendment 1.
1:20:17 PM
REPRESENTATIVE LEDOUX responded that is the whole idea of voting
during an election. She questioned whether Representative Lynn
is not supporting Amendment 1 because he doesn't trust the
people to vet the attorney general. If so, she noted it appears
he wouldn't support HJR 18 in its entirety. She opined that
either Representative Lynn believes people are capable of
vetting the attorney general through the election process or
not. She indicated the only other alternative would be for the
Alaska Judicial Council to determine which candidate is
qualified and only those people could run for the office of
attorney general.
1:21:18 PM
CHAIR KELLER inquired as to the qualifications for a superior
court judge.
1:22:14 PM
REPRESENTATIVE STOLTZE expressed that his personal reason for
sponsoring HJR 18 is the potential for the Alaska Judicial
Council to insert itself in the process.
1:22:38 PM
CHAIR KELLER read from information provided by his staff, "The
judge of the superior court shall be a citizen of the United
States and of the state, a resident of the state for five years
preceding appointment, have been engaged for not less than five
years immediately preceding the appointment in the act of the
practice of law but need not be licensed to practice law in any
of the United States, and the act of practice of law shall be as
defined for Justices of the Supreme Court." He opined that
there is a difference.
1:23:36 PM
REPRESENTATIVE STOLTZE conveyed that when the governor appointed
Attorney General Renkes he was not admitted to the bar at the
time and had to scurry to obtain his credentials after being
appointed. Representative Stoltze remarked he was not certain
it was a legal requirement as it may have been more of a
political requirement. However, an attorney general would have
had to have a license to appear before the Alaska Supreme Court,
and yet a governor made an appointment of someone without a
current Alaska Bar Association License. More protection is
provided under HJR 18 than the current system, he opined.
1:23:53 PM
REPRESENTATIVE KELLER announced that Representative Gruenberg
removed his objection, but Representative Lynn had not removed
his objection.
1:24:56 PM
REPRESENTATIVE GRUENBERG remarked the language in Amendment 1 is
unclear in terms of the term "qualifications" on page 2, line 1,
as it could mean the statutory qualifications or going through
the Alaska Judicial Council. He pointed out that an individual
cannot become a superior court judge unless nominated by the
Alaska Judicial Council, which he said he did not believe is the
intent of HJR 18. He then noted his opposition to Amendment 1
for the aforementioned reasons. If the attorney general is to
be elected, he opined that it is better for the individual to
meet the qualifications of a [superior court] judge. He related
a scenario wherein an individual could practice law but work for
Legislative Legal Services under a temporary license, or an
individual could have been a federal official, quasi-official,
or even a bankruptcy judge who was not a member of the Alaska
Bar Association. He surmised Representative Stoltze's intent is
for an attorney general to meet statutory qualifications rather
than going through the Alaska Judicial Council.
REPRESENTATIVE STOLTZE responded the whole point of HJR 18 is to
not have the governor, or the Alaska Judicial Council, or the
Alaska Bar Association [involved], but to give the [vote on the
attorney general] to the people of Alaska. He admitted he may
have been careless with the use of the original language, but is
concerned whenever there is an invitation for the Alaska Bar
Association to get between the people of Alaska.
1:28:49 PM
REPRESENTATIVE LEDOUX advised that under AS 22.05.070
Qualification of [Justices for the Supreme Court], that former
Attorney General Dan Sullivan would not have qualified as being
in the active practice of law or anyone who is in an elective
office. She remarked that she trusts the people and whatever
candidate has qualifications will come out in the election
process.
1:29:39 PM
REPRESENTATIVE GRUENBERG advised that AS 22.10.090,
[Qualification of Judges of the Superior Court] includes the
language "... be licensed to practice law in this state." If
the committee is reviewing the language analytically and it is
left up to the people, he questioned why the attorney general
should have to have a license to practice in Alaska. He
clarified that he was putting up "sidebars" on the argument that
not just anyone can be the attorney general, as they must at
least be licensed to practice law.
1:31:30 PM
REPRESENTATIVE LYNN questioned if a person could be fully
qualified to be a superior court judge, but not necessarily
nominated.
REPRESENTATIVE LEDOUX responded "yes."
REPRESENTATIVE STOLTZE stated that many qualified people get cut
off during the nominee stage, which is a central part of this
discussion.
1:32:49 PM
REPRESENTATIVE PRUITT questioned whether the [attorney general]
qualifications should be attached to the statute, which can be
changed by 21, 11, a majority vote in the House and Senate
respectively, and the governor. If the intent is for the
[attorney general] to be "licensed to practice law in the state"
and that is the extent of it, then perhaps that's it rather than
tying it to a statute that has the possibility of being changed.
Therefore, he opined that the language should be clear regarding
the qualifications.
1:34:03 PM
REPRESENTATIVE GRUENBERG informed that the qualifications to
practice law and standards for the Bar exam are set by the
Supreme Court as delegated in statute; and constitutionally the
Alaska Bar Association is under the Alaska Supreme Court. The
phrase "licensed to practice law in this state" is one of the
qualifications in HJR 18, which he interpreted under the Alaska
State Constitution to mean an active license rather than an
inactive or retired license because one is not able to practice
law with an inactive license.
1:36:16 PM
The committee took a brief at-ease.
1:37:32 PM
CHAIR KELLER requested Representative LeDoux withdraw Amendment
1 in order to obtain the testimony of former Attorney General
Avrum Gross on the unamended resolution.
1:38:14 PM
REPRESENTATIVE LEDOUX withdrew Amendment 1.
1:38:42 PM
CHAIR KELLER, in response to Representative Stoltze, said in the
event Representative Stoltze's attorney cared to testify he/she
would be heard as the committee will hear anyone that calls or
comes before it.
1:39:04 PM
REPRESENTATIVE LYNN noted that he was considering offering an
amendment that involves the attorney general running on the same
ticket as the governor and lieutenant governor.
1:40:01 PM
CHAIR KELLER announced HJR 18 would be heard on Monday at 1:00
p.m.
1:40:23 PM
AVRUM GROSS informed the committee he was an assistant attorney
general under former [Attorney General] Ralph Moody and Governor
William Egan at statehood, and then attorney general under
Governor Jay Hammond for six years. He noted he has been an
Alaskan resident for more than 50 years and lives at the old
Chatham Cannery located in Sitko Bay, across Chatham Straits
from Angoon.
MR. GROSS noted that this issue was intensely debated at the
Alaska Constitutional Convention and introduced in at least 10
or 12 legislatures since then. Each body that has considered
this issue in depth, be it Republican, Democrat, Liberal, or
Conservative, has concluded that the present system works well
for Alaska and an elected system would cause unwanted problems,
he opined. In Alaska, the responsibility granted to the
attorney general is unusual in that every single legal function
of the state is performed under the auspices of the attorney
general and the assistants he/she appoints to the department.
Furthermore, the attorney general is responsible for all legal
advice to state agencies and the myriad of daily problems, such
as permits, whether regulations qualify under statutes,
qualifications for benefits by an applicant, federal/state
conflicts for fish and game, et cetera. The aforementioned
occupies a huge amount of the department's efforts. Moreover,
the Department of Law is responsible for offering [legal advice]
to the governor's office, which is the only office with that
responsibility. He explained that the attorney general is the
sole state official who has standing to represent the state in
court and is responsible for enforcing all of the criminal laws
of the state through appointed district attorneys and assistant
district attorneys.
MR. GROSS described other states with an elected attorney
general as very different from Alaska. For instance, in
Washington and California criminal prosecutions are handled by
elected district attorneys and are not subject to the attorney
general's supervision at all. In every state with an elected
attorney general, the governor has an extensive staff of
attorneys just to advise his office and in many of these states
individual departments have their own attorneys hired by and
responsible to commissioners. This system makes consistency
with regard to the legal advice dictated from the attorney
general's office difficult or impossible as the attorney general
is called in after the fact. When the attorney general is the
sole legal official of the state, the attorney general's actions
have an enormous impact on the day-to-day operations of state
government, including the fact that prosecution of criminal law
is an important public function in which the public is seriously
interested. Maintaining a smooth operation of state government
under consistent legal advice is critical. Moreover, he said,
advising the governor of legal problems before they occur is
very important to the success of the governor's administration.
Alaska's framers desired centralized executive power and
determined that the attorney general should be appointed by the
governor who, under the Alaska State Constitution, is solely
responsible to the people of Alaska for the effective operation
of state government. The governor is the one statewide elected
official who cannot make excuses or blame anyone else. He
recalled a statewide call-in show when Governor Hammond, in
response to a caller, said he, as the governor was the chief law
enforcement official in the state.
MR. GROSS posed a scenario depicting why the attorney general
appointment and control by the governor is so integral to state
policy. Suppose a gubernatorial candidate who runs on a
platform addressing domestic violence is elected and this
governor directs the commissioner of the Department of Public
Safety [and the elected attorney general] that he wants more
energy spent on the domestic violence issue, a task force
established, et cetera. When the governor is then up for re-
election and the public complains that he/she didn't lower
domestic violence, the governor can point to the elected
attorney general and say it is his/her fault. The elected
attorney general can blame the governor and say he gave it every
priority he thought it deserved in the context of the overall
criminal justice operation. He questioned, who Alaskans are
supposed to believe under those circumstances. Under the Alaska
State Constitution, the theory is that the governor is to be
responsible for everything as the governor has the authority to
appoint people to carry out his programs.
MR. GROSS noted that the Department of Law is no different than
any other department and should ensure that state government
runs well and that the governor is responsible for what happens.
He noted that most of the efforts for change are based around
the notion that the attorney general is a mouthpiece for the
governor, that the attorney general is too involved in the
political process, and that making him the people's attorney by
electing the attorney general would alleviate that problem.
However, that is not the case. During his nine years of
experience and from everything he knows about the Department of
Law, he opined that if an attorney general wants to help the
governor, politically or otherwise, he does the governor service
by telling the truth, as in reality. He remarked that the
governor is no different than any other client-attorney
relationship. The attorney general in this state is not the
law, but he's a lawyer who gives opinions to the governor, and
to the state agencies. If he/she gives a bad opinion and gets
the governor in trouble, people have access to freely use the
courts. He reiterated that the attorney general does the
governor no favor by not telling him the best legal course he
could follow, or that what the governor plans to do is not
consistent with law, he opined.
1:52:16 PM
MR. GROSS continued that elected attorneys general have their
own political agenda and it could be that the attorney general
position is a stepping stone to the position of governor or
senator, so it is often not in the attorney general's best
interest to make the governor look good. He questioned how the
elected attorney general is going to raise money and from whom,
trial lawyers or corporations. He opined that the present
system is not broken as it has worked very well, and suggested
the legislature not fix it. Thank you for the opportunity to
testify. I would be happy to answer any questions.
1:55:13 PM
CHAIR KELLER announced HJR 18 would be set aside.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HJR 18 Proposed Amendment A.5.pdf |
HJUD 3/14/2014 1:00:00 PM |
HJR 18 |
| HJR 18 Proposed Amendment A.3.pdf |
HJUD 3/14/2014 1:00:00 PM |
HJR 18 |
| CSHB 127 (STA) Proposed Amendment E.3.pdf |
HJUD 3/14/2014 1:00:00 PM |
HB 127 |