Legislature(2013 - 2014)CAPITOL 106
02/11/2014 08:00 AM STATE AFFAIRS
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* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HJR 18-CONST. AM: ELECTED ATTORNEY GENERAL 8:10:31 AM CHAIR LYNN announced that the next order of business was HOUSE JOINT RESOLUTION NO. 18, Proposing amendments to the Constitution of the State of Alaska relating to the office of attorney general. 8:10:47 AM REPRESENTATIVE STOLTZE, Alaska State Legislature, as sponsor, introduced HJR 18. He said one reason to elect the state's attorney general would be to "sanctify" that he/she would be "the people's lawyer." He indicated that a current AG may call him/herself that, but in fact is the governor's lawyer. He said the resolution is for the future of Alaska. In response to the chair, he indicated that subsequent to 1972, constitutional amendments must appear on the General Election ballot. He said if the legislature ratifies this by a two-thirds vote in each body, it would be placed on the [General Election] ballot. He added that then it would be in the hands of the voters, in whom he trusts. REPRESENTATIVE STOLTZE said some people have suggested that an elected attorney general may be politically influenced. He stated that anyone who has watched attorney generals in Alaska knows they already are political by nature. He said he trusts that Alaskans would vet their candidates just as they do legislators. 8:14:11 AM CHAIR LYNN asked if it would be possible to have a governor in one political party and an AG in another. REPRESENTATIVE STOLTZE answered yes, and said it currently happens in about a dozen other states. He surmised that it would be the will of the voters. He said he is not sure there should be a mandate that the AG and governor are of the same party, but suggested a stronger mandate would be that the AG must be a person that will support the Constitution of the United States, the Constitution of the State of Alaska, and the people of Alaska. 8:14:55 AM REPRESENTATIVE ISAACSON said the sponsor almost had him convinced, "especially because of the events here recently." He stated, "Sometimes if you don't have a direct line of accountability in place, you might have a different outcome; you might have more scrutiny on issues and so forth." He said early in the history of the U.S. Constitution it was possible to elect a Vice President of a political party different from that of the President. He asked, "Is there a way, perhaps, that we could close that gap, so that if people are electing a governor of one party, they could also then have, similar to the lieutenant governor and so forth, a ticket, or is that going to bring too close of a ... tieback?" REPRESENTATIVE STOLTZE answered that it could be a possibility. He said the lieutenant governor is tethered to [the governor by political party]. He indicated that the difference between the lieutenant governor and all other appointments is that the lieutenant governor is elected by the people, does not require confirmation, and cannot be removed by the governor. He said it is part of the process for the committee to decide whether to "propose that change here." REPRESENTATIVE ISAACSON clarified, "How would that be affecting the intent of your ... legislation?" REPRESENTATIVE STOLTZE responded that he was "not sure it would solve everything you would want it to solve," but said he thinks "it would have the same net result, because that person would be elected by the voters [and] could not be removed by the governor." 8:19:08 AM REPRESENTATIVE HUGHES suggested some may see an elected AG position as a training ground for governor, which may result in a lot more attorneys serving as governor. She then proffered that a positive effect of HJR 18 may be that it could reduce turnover of attorneys general. She offered her understanding that in other states, the AG often serves a full, four-year term, and go on to a second or third term, and that under HJR 18, there would be a two-term limit. She asked the sponsor if he thinks [the proposed legislation] would impact the turnover rate, and asked, "How do you see that as a plus for Alaska?" 8:20:07 AM REPRESENTATIVE STOLTZE replied that the average turnover of the AG is 18 months, and HJR 18 would offer some stability, because the AG would not be subject to "the whim of a political disagreement." He said he does not recall a lieutenant governor who has ever resigned. He said, "The attorney general, I think, ... probably would have ... more powers than the lieutenant governor, [but] would not be in the line of succession though." He surmised that morale would be raised within the Department of Law (DOL), "knowing that they had one person" and "without the vagaries" related to the current steady turnover of attorneys general. 8:21:44 AM CHAIR LYNN asked if there would be any additional cost in adding another [position] for election on the ballot. REPRESENTATIVE STOLTZE indicated that the standard cost shown on a fiscal note for printing an extra page is $1,500. 8:22:29 AM REPRESENTATIVE GATTIS asked why the sponsor was proposing HJR 18 now, beside the fact that other states [have elected attorneys general]. 8:22:39 AM REPRESENTATIVE STOLTZE answered that others have pushed the measure in the past. He offered his understanding that the last three to four attempts were made by [Democrats]; therefore, he called the issue bi-partisan. 8:23:18 AM REPRESENTATIVE KELLER said he is looking forward to hearing HJR 18 in the House Judiciary Standing Committee (HJUD), and he expressed his appreciation to the sponsor for bringing it forward for consideration. He stated, "In a ... legal system where crimes are against the state and the attorney general is also the commissioner of the Department of Law, I think it's very, very valuable for the people of Alaska to be able to know who their attorney general is." He indicated intent to remain open minded during the hearing of HJR 18, but said it would be unfair to not state his bias. 8:24:53 AM CHAIR LYNN remarked that the AG is basically a commissioner; therefore, he asked if it would be appropriate to elect "all the different commissioners." 8:25:45 AM REPRESENTATIVE STOLTZE answered that he will not delve into that debate. He opined that the position of AG "rises to a much higher level." He stated that the average AG can make law faster than [the legislature]; the opinion of an AG can nullify a statute or regulation. He said recently the lieutenant governor turned down a citizens' initiative, based on the opinion of an assistant and signed by the AG, and he said it bothers him that an assistant AG has more power than the people of Alaska, but with no accountability. 8:26:22 AM REPRESENTATIVE ISAACSON noted that city and borough assemblies and councils usually have the power to hire and fire their attorneys. Looking back on his experience as mayor [of the City of North Pole], he said he used whatever attorney was there and had no issues with them; however, if he had wanted to terminate the attorney for not representing the interest of the city, it would have been a political battle. He questioned what would happen if the AG was elected and turned out not to be serving the state's best interest and it was too cumbersome a process to remove that AG from office. He suggested following the municipal model by having the legislature hire and fire the AG, which might provide a quicker political process, because the legislature would know whether the interests of the state were being served and the governor would not be directly controlling "that one function." He asked the sponsor for his feedback. 8:28:04 AM REPRESENTATIVE STOLTZE, returning to Chair Lynn's previous question, said in most states in the union, the agricultural director or commission is elected, while in Alaska it is a political appointment, and the only qualification is that the person must be a citizen of the United States. Regarding Representative Isaacson's question, he said he is not sure about bringing the legislature into the process. He surmised that the legislature has the ability to bring an attorney general before it for a hearing if there are grounds to do so; however, he said sometimes people won't show up for a hearing. For example, he related that a previous administration chose an AG, the next administration retained the AG, but the AG would often decline to appear before the judiciary committees or would send surrogates. He offered his understanding that it would require an amendment to the Constitution of the State of Alaska to give the power to the legislature to "micromanage the attorney general," which is something he said he does not want to do. He emphasized that he wants the AG to work for the people. He said, "I think an attorney general that's working for the people would have no problem with the appropriation process here, just like they don't right now." He indicated that there are critics of the way things are working right now and the way that is proposed in HJR 18. 8:30:14 AM REPRESENTATIVE KREISS-TOMKINS expressed concern over the possible loss of coordination between a governor and attorney general of differing political parties. He asked about that situation in other states and whether the sponsor thinks it would be as pronounced in Alaska. 8:31:23 AM REPRESENTATIVE STOLTZE indicated that it would be no different from having a governor and lieutenant governor who disagree. For example, he recollected there was a lieutenant governor who did not support the re-election of the governor's daughter. He said there are conflicts in other states, such as when an attorney general runs against the governor. He stated, "Sometimes ... [when] trying to figure out how to stop politics you inject more politics." He admitted that some people may accuse him of doing just that, but noted that he has received support from his constituents and colleagues for the proposed joint resolution. He said there have been governors and attorneys general who have worked well together and those who have not, and he indicated that there are no guarantees, irrespective of whether an AG is appointed or elected. 8:33:37 AM REPRESENTATIVE HUGHES expressed appreciation to the sponsor for pointing out how under HJR 18, the AG would be more accountable to the people of Alaska. She said she values the public's vote and hopes [a race for AG] would not become a beauty or public speaking contest, because she ventured that someone who is not a good public speaker could be a good attorney general. She stated her support of [HJR 18] as a "healthy process." She said she thinks it is good that the House Judiciary Standing Committee will be considering whether there would be some way to recall an AG. She questioned whether the race for AG would appear on the primary ballot by party in a long list of names on the General Election ballot. 8:35:03 AM REPRESENTATIVE STOLTZE answered that under HJR 18, the process for electing the AG would be the same as the current process for electing the lieutenant governor. He said, "The lieutenant governor is almost written as another exemption." The AG would run separately or as "a triad," depending on the will of the committee. 8:36:24 AM CHAIR LYNN said the concept is interesting, but expressed concern about the possibility of having a governor and AG with opposing views. He opined that the AG, who advises the governor, should have similar philosophical views. 8:38:25 AM REPRESENTATIVE STOLTZE surmised that if the chair believes that the governor and AG should be philosophically aligned, then HJR 18 is probably not legislation he would support. He reemphasized that the purpose of changing the AG's position to an elected one is to make him/her a direct representative of the people. CHAIR LYNN remarked that all elected officials are in office to serve the people, and he suggested that by advising the governor on the constitutionality of proposed law, he/she is serving the people. 8:40:15 AM REPRESENTATIVE STOLTZE said he cannot predict every possible scenario in which there may be conflict. He stated, "I'm not trying to cast aspersions on anybody, but it's a different relationship when the attorney general, first and foremost, is the governor's attorney." CHAIR LYNN suggested at least electing an AG who shares the same political party. REPRESENTATIVE STOLTZE reiterated that he is "amenable to the deliberations of the committee." Notwithstanding that, he said, "I think philosophy isn't something we can define by statute, and party doesn't necessarily define philosophy as ... we know from some of our critics." 8:42:05 AM REPRESENTATIVE GATTIS stated, "I think most of us get the fact that if we were appointed by somebody, we certainly have a certain allegiance by who may have appointed us, versus if we're elected by somebody else - the voters - we certainly have an allegiance there." She proffered that the question being asked is for whom [the AG] works. 8:42:54 AM REPRESENTATIVE KELLER offered a reminder that legal counsel to the governor is not just the AG, because as head of the Department of Law, the AG has deputy commissioners, many of whom give council in specific areas. He said, "By electing ... an attorney general, I think we would begin to see that process better in the electorate." CHAIR LYNN stated his assumption the [assistant attorneys general] would not want to irritate their boss by "coming up with opposite opinions on everything." 8:44:11 AM REPRESENTATIVE ISAACSON noted that Wikipedia says an AG is the advisor to the governor, while the Encyclopedia Britannica says the AG is "the chief law officer of the state or nation and the legal advisor to the chief executor." He said everyone seems to recognize that the AG is going to advise the governor, but the AG is also the chief legal counsel for the state. He opined that there is a distinction between the governor and the government, the latter being of the people. At the same time, he said, the legislature is the government, as well, and makes laws, and in some aspects the AG needs to advise the legislature. Further, he said, the AG looks out for infringements of law outside the state. Representative Isaacson said he thinks the point to consider is where the line of accountability is to be drawn. He said he thinks this relates back to the Seventeenth Amendment, which he recommended should be considered as a corollary. He asked the sponsor to weigh in on the distinction between governor and government. He further asked how the sponsor would "educate his thinking" so that he might "align more to this." He said he sees value in [HJR 18], but expressed concern that it may have unintended consequences. 8:47:29 AM REPRESENTATIVE STOLTZE said he thought Representative Isaacson made a good distinction. He said there are differences and similarities. He said he hopes that if things are working as they should, an AG representing the government is representing the people's interest as well. He said that could extend to an elected AG, who certainly would have his/her own initiatives. He mentioned "what Attorney General Sullivan did on [Governor Sean Parnell's] Choose Respect [campaign]." He indicated that activism and questioning the government is seen more often from [an elected] AG serving the public than from a "co-employee" that does not have "that same optic or prism." 8:49:37 AM REPRESENTATIVE HUGHES stated that currently the governor signs the paychecks of state employees, and an elected attorney general would be the boss to those working in the Department of Law. She questioned whether the governor would have any say if there were people in the department he/she did not feel should be there anymore. She offered her understanding that that relationship would be different, but questioned how. REPRESENTATIVE STOLTZE mentioned an appropriation process in other states. He then said the Office of Management and Budget (OMB) does not review the court budget; the court system presents its budget to the legislative branch. He indicated that the proposed joint resolution outlines the implementation process for electing the AG, and that process could be fine- tuned. He stated that he envisions that the AG would present the budget through the legislative arm. REPRESENTATIVE HUGHES indicated she was thinking of a situation in which the governor may have a problem with a particular AG outside of legislative session and the appropriation process, and asked how the relationship would be different in other states. REPRESENTATIVE STOLTZE replied that other states have different personnel rules. He added, "I don't think we'd be eviscerating the employee rights." 8:52:45 AM MIKE COONS noted he had submitted written testimony [included in the committee packet]. He expressed his hope that [the AG] would not be "a yes man or yes woman." He stated his support of HJR 18. He directed attention to [a sentence] on page 1, line 16, through page 2, line 1, of HJR 18, which read, "A person is not eligible to serve as attorney general unless the person meets the qualifications for a superior court judge." Mr. Coons stated that no one who has "run for a judge" will answer questions regarding subjects such as criminal penalties and minimum or maximum sentences, the stated reason being that they may have to make a decision on one of those issues. He questioned whether "we" would be reduced to candidates whose campaigns focus on the length of time they have been a judge, a lawyer, an Alaska resident, or a part of a fine family, or if more substantive information would be given. MR. COONS stated, "We need to know that the AG will stand for the law, will fight back against federal overreach, and give sound advice to the legislature without waffling as I have seen from this existing Department of Law." He paraphrased a portion of his written testimony, which read as follows [original punctuation provided]: Lastly, I struggled about this position being appointed and vetted and approved or disapproved by the legislature. I felt that the Governor and Legislature were in a better position to determine the best AG. MR. COONS explained that his view changed as a result of comments made by a Senator who believed he and the legislature were, by virtue of a college education and superior knowledge on the matter - especially concerning a constitutional amendment - more qualified to make that decision for the voters. Mr. Coons emphasized that he would trust his fellow voters to make a valued decision, and he would not give up his vote. 8:55:32 AM REPRESENTATIVE STOLTZE said he appreciates the point made by Mr. Coons, but said he does not want to confuse this with the judicial appointment process. 8:56:53 AM CHAIR LYNN, after ascertaining that there was no one else who wished to testify, closed public testimony. 8:57:20 AM CHAIR LYNN suggested that the committee could consider an amendment to limit the choice of AG to someone in the same party [as the governor]; however, he said such an amendment may be better addressed by the House Judiciary Standing Committee. 8:57:43 AM REPRESENTATIVE ISAACSON said he wonders if conceptually it should be the House State Affairs Standing Committee that addresses that amendment. He indicated that if the proposed legislation were to pass out of committee, he would recommend that the conceptual amendment was in place. He said he sees a lot of disruption of good governments, and he does not believe that's what the people want. He said back when the Seventeenth Amendment was passed, the idea was for Senators not to be "selected out of the states," but to be voted on by the people. He opined that "the people ultimately are the best government," and mistakes made by voters tend to be corrected later. REPRESENTATIVE ISAACSON stated that one of the values of having a governor appoint the attorney general is that the governor has been elected to serve according to a vision that resonated within the voters. In order to [follow that vision], the governor must have department heads who will "toe the line." He said that does not always happen, and when it does not the result is a dysfunctional government. He opined that when it comes to matters of law, it is important to have not just a good lawyer but one who understands the state and whose philosophy is "right." He said if the people elect someone who is recently from another state, and that person is charismatic and has a great record but does not understand the issues particular to Alaska, then the state is stuck with that AG for four years, whereas, an appointed AG that is not working out could leave sooner. REPRESENTATIVE ISAACSON opined that Alaska, at over 50 years of age, cannot afford to "play lightly" with its future, which is insecure at present because there are too many people in charge that do not understand the requirements of the state's constitution. He said he could envision how an elected AG, not knowing the "peculiarities" of Alaska's state government, could shut down resource development. He said the states lost their power to control federal overreach when they lost the power to "insert people selected by the various legislatures in to the Senate" to protect the states' interests. REPRESENTATIVE ISAACSON stated: I would say I could go along with this as long as we at least had alignment of parties. I don't want to see a dysfunctional government or one that's divisive to the best interests of the state. 9:04:07 AM REPRESENTATIVE KREISS-TOMKINS said the state is hoping to build a large diameter natural gas line, and he wonders how the coordination between DOL and the executive branch would work, under HJR 18. He explained that the project is one of unprecedented scale and, presumably, would require unprecedented coordination. He said he also worries that the AG position would be filled more by political ability than professional competence. Finally, he said he thinks the AG in Alaska is more powerful than the lieutenant governor, in terms of scope of power and responsibility. He stated, "I ... think that's a fair point to make, that the precedent exists. This would be moving that further, and that's just something we should acknowledge." 9:06:15 AM REPRESENTATIVE KELLER stated for the record that the House Judiciary Standing Committee, [which he chairs], would consider an amendment on the partisan issue, removal standards, and qualifications. 9:07:32 AM CHAIR LYNN echoed Representative Kreiss-Tomkins' remark that there is a difference between campaign ability and legal ability; just because someone campaigns well does not mean he/she will perform well in office. 9:07:57 AM REPRESENTATIVE KREISS-TOMKINS admitted that as a "political junky," he would relish the idea of having another campaign to follow. 9:08:16 AM REPRESENTATIVE HUGHES offered her understanding that 43 other states elect their AG, and she said she would like to know how many of those states require the elected AG to be of the same party as the governor. 9:08:57 AM REPRESENTATIVE STOLTZE said committee members had asked a lot of good questions, and he stated his intent to address their concerns. Regarding the concern that someone elected as AG might not be intimately involved with Alaska, he said an AG that is appointed does not have to be a resident of the state. He recalled an AG that left the state right after service. He indicated that the qualification requirements for residency and citizenship are the same [for an AG] as for other elected executive positions. He surmised that Representative Isaacson might take more comfort if there was an assurance that the AG is an Alaska resident - "someone familiar with Alaska and its economy and our legal system, because they've lived here and worked here." He stated that through the existing appointment process, there have been people from other states serving as attorneys general, some of whom were not even members of the bar and had to secure that credential. 9:11:23 AM REPRESENTATIVE KELLER moved to report HJR 18 out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HJR 18 was reported out of the House State Affairs Standing Committee.