Legislature(1997 - 1998)

02/04/1998 01:08 PM JUD

Audio Topic
* first hearing in first committee of referral
+ 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                 
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                
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                      
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                       
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             
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               
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                  
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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