Legislature(1999 - 2000)
02/24/1999 01:37 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 69-ADVISORY VOTE ON ELECTED AG
SENATOR JERRY WARD, prime sponsor of SB 69, explained the bill
allows a vote of the people of Alaska to decide whether the
attorney general (AG) should be an elected position.
SENATOR WARD said the attorney general now works at the pleasure of
the Governor, not for the people.
SENATOR WARD stated that the current Attorney General made a
political decision about the Babbitt subsistence case. He
commented, "I don't mind those Governors having Bruce Bothelo as
their Attorney General - that's fine, but I think the people should
have an attorney general that represents them and the Constitution
- not for political consideration."
SENATOR WARD testified that he has done research and determined
that all but five states have an elected attorney general.
SENATOR HALFORD said he did not think SENATOR WARD'S objective
could be accomplished by an amendment. He asked, "Why don't we do
this by resolution and forget about the advisory vote - let the
people vote on the issue." SENATOR WARD agreed it could be done
that way, but he prefers for the debate to happen first. CHAIRMAN
TAYLOR asked if SENATOR WARD would be willing to sponsor a
committee substitute that followed SENATOR HALFORD'S suggestion. He
said he would not be opposed to that. SENATOR HALFORD commented
that a bill cannot be changed into a resolution in committee.
Number 484
SENATOR WARD reported there is a bill to amend the Constitution
"coming in from the other side." He then said, "I do want to have
the debate; I can't wait 'til the current Attorney General debates
with our current Judiciary Chairman on whether or not this should
pass in a public arena - I think it's going to be quite
interesting."
SENATOR DONLEY suggested the bill contain a contingent effective
date so it could serve as a fall back in case a resolution does not
pass.
SENATOR HALFORD noted the vote required to override a veto is the
same vote required to approve a resolution. SENATOR WARD agreed and
said, "I thought there were four extra votes for this . . . We are
two separate bodies but I have counted and I feel very good about
the people being able to debate this in an election process - a lot
of people looking forward to that."
MS. SUSAN FISCHETTI of Eagle River testified in support of SB 69.
MS. FISCHETTI said it is important to bring Alaska into line with
other states. As the sponsor of "the English initiative," she
believes an advisory vote would be fair and popular and ensure the
attorney general is more accountable to the people of Alaska.
Number 448
MR. KEN JACOBUS opposed SB 69 but supports the idea of an elected
attorney general as another check and balance within the executive
branch. An elected position would give people another avenue of
direct input in government, encourage participation in the
political process, and result in decisions involving more
compromise. MR. JACOBUS agreed with SENATOR HALFORD and encouraged
the committee, "If you have the votes to put a constitutional
amendment on the ballot, just put the constitutional amendment on
the ballot and let the people debate it once rather than debating
it twice."
Number 423
MR. JIM BALDWIN, representing the Office of the Attorney General,
stated the Administration does not support the bill.
MR. BALDWIN did not disagree to debate the issue, but said the
issue needs to be examined "head on" to see if it is in fact a good
idea. According to MR. BALDWIN, the framers of Alaska's
Constitution opposed the proliferation of elected offices; and
believed the governor should be responsible for decision-making,
not "lay off the blame for certain decisions on his subordinates .
. . that's what we have now."
CHAIRMAN TAYLOR asked how a person becomes attorney general and MR.
BALDWIN said they are appointed by the governor and confirmed by
the legislature. CHAIRMAN TAYLOR replied that is why we have not
had an attorney general for four years. "He has never stood for
confirmation . . . and he was required to do so . . . in direct
violation, in my opinion, of the Constitution of this state. Now
who do we in the Legislature turn to to enforce the Constitution of
this state?" MR. BALDWIN argued that this Attorney General was
confirmed by the Legislature.
SENATOR HALFORD informed MR. BALDWIN he would like a written
opinion on whether the Administration believes the election of the
attorney general constitutes an amendment or a revision to the
constitution. MR. BALDWIN replied he would convey that request.
Number 352
MR. BALDWIN asserted the approach in SB 69 is not a good one. He
speculated that if the 45 governors with elected attorneys general
were polled, they would unanimously prefer appointed attorneys
general. MR. BALDWIN urged the committee to consider the problems
that occur when there is a political split between the attorney
general and the governor/lieutenant governor.
CHAIRMAN TAYLOR explained the Judiciary Committee is charged with
reviewing proposed legislation for constitutional impacts and
problems. He stated he has never before supported this measure, but
the forefathers of Alaska "never would have believed we could have
elected a Governor so corrupt that he would abuse the Constitution
for his own political purposes."
CHAIRMAN TAYLOR listed the Babbitt case, the Alaska Public Safety
Information Network "scandal" and the lack of any state
prosecutions in the World Plus ponzi scheme as examples where
"politics has been allowed to prevail over our Constitution to the
detriment of our citizens, by this Attorney General. He wanted the
appointment so much that he was willing to prostitute the law and
the Constitution in the way he has carried it out."
CHAIRMAN TAYLOR stated this is the second Administration under
which Attorney General Bothelo has refused to stand for
confirmation.
CHAIRMAN TAYLOR said the Legislature does not have standing in
court to protect our state's rights. He concluded, "If, for any
political reason, any political benefit, the decision is made on
the third floor that our Constitution is to be disregarded, that
our state is not to be protected . . . they (statehood rights) will
not be protected."
Number 268
SENATOR DONLEY asked if any states have changed from an elected
attorney general to an appointed one, or vice-versa. MR. BALDWIN
offered to research the question and let the committee know.
SENATOR DONLEY suggested the committee should be more concerned
with what the people, rather than the Governor, feel is good for
the government. MR. BALDWIN said presumably the Governor, as a
statewide elected official, knows the will of the public. SENATOR
DONLEY said it seems the best way to find out is to take a vote.
MR. BALDWIN replied taking a vote will determine what the people
who turn out to vote want, not what all the people of the state
want. SENATOR HALFORD asked MR. BALDWIN if he advocates returning
to a more limited franchise.
Number 204
SENATOR DONLEY remarked it is incredibly inconsistent of this
Administration to oppose a vote on a straightforward proposition
like this and to "continue the mantra of 'let the people vote' when
it comes to a very complex issue like subsistence." MR. BALDWIN
argued this is not a simple proposal that can be conveyed to voters
via a short ballot proposition. MR. BALDWIN concluded he does not
want to debate whether the people should vote on electing an
attorney general, but rather that the election of an attorney
general is a bad idea.
Number 128
MR. AV GROSS, former Attorney General for Alaska, expressed an
obligation to the office to testify on this issue.
MR. GROSS agreed that most states have elected attorneys general,
but said, unlike Alaska's AG, elected AG's do not prosecute crimes,
control the criminal mechanism, or argue cases for departments of
state. They have limited powers or, basically, no power at all.
MR. GROSS proposed appointed AG's are lawyers who have an interest
in politics and elected AG's are politicians who are lawyers.
MR. GROSS said the election of an attorney general results in an
adversarial relationship between the governor and the attorney
general because the attorney general is likely to have political
aspirations and the governor stands in the way. The AG often makes
trouble for the governor and initiates lawsuits against him or her.
MR. GROSS suggested such an adversarial situation does not work;
if the governor is the sole person responsible to the people for
how the executive branch of government works, the attorney general
should be responsible for his or her functions as are other
department heads.
MR. GROSS emphasized the attorney general in Alaska can accomplish
much more than AG's in other states, such as introducing uniform
sentencing requirements. The AG runs a "huge law firm" and most of
his functions have nothing to do with politics. Occasionally, a
very political issue will come up and the AG will be called to
advise the governor on the issue. As with any other client, noted
MR. GROSS, the AG does the governor no favor to tell anything less
than the whole truth. "If you advise the governor badly, it comes
back to bite you in the worst way."
TAPE 99-13, SIDE A
Number 001
MR. GROSS proposed if the AG were elected, the governor would take
no responsibility for crime or the legal actions of departments of
state, "Which, right now, you can stick 'em with." This is what the
framers wanted.
MR. GROSS conceded there have been politically motivated AG's, just
as there have been crooked legislators and bad commissioners. He
maintained elected attorneys general would be as bad as appointed
AGs; they would be selected more on their ability to get a majority
vote than their reputation as attorneys.
Number 044
MR. GROSS said it is no secret that people will want to elect the
attorney general. He recalled how he had opposed applying the Open
Meetings Act to the Legislature because he knew it would pass by an
overwhelming vote, but he also knew; "The legislature needed,
sometimes, a private debate . . . moments of quiet discussion away
from the cameras . . . it's not politically correct but it is
true." He claimed the issues are similar.
MR. GROSS said the attorney general acts like another commissioner,
and there is no more reason to elect the AG than there is to elect
the Commissioner of Natural Resources.
CHAIRMAN TAYLOR argued that the AG is not accountable to the
Legislature or the people and therefore the only recourse left to
the Legislature is impeachment.
Number 087
MR. GROSS commented that the legislature can file suit against a
decision with which it disagrees, which in fact, happened while he
was attorney general. MR. GROSS conceded that past attorneys
general have made stupid mistakes, but claimed they are only
lawyers who enjoy public service. He illustrated an example of "the
most political instance in which the attorney general was ever
involved." At the end of this case, it was shown that the attorney
general's office had worked in a non-political fashion. "It was a
credit to the Department of Law." MR. GROSS said he hoped the
Legislature wouldn't "let your irritation over a particular
decision or a particular action by one person color your thinking
so much you are willing to literally change the basic structure of
government."
Number 153
CHAIRMAN TAYLOR stated he has the utmost respect for MR. GROSS, and
he has defended his position (for an appointed attorney general)
for the past 13 years, but he can no longer do so due to the three
examples he cited, which were "totally motivated by politics." MR.
GROSS said he understood CHAIRMAN TAYLOR'S anger, but said making
the attorney general run for office won't make it a less political
office. CHAIRMAN TAYLOR replied he knows no other way to prevent
"that type of abuse from occurring in the future." MR. GROSS
responded that the governor would fire an attorney general who made
a decision contrary to the popular will. CHAIRMAN TAYLOR replied,
"I've not seen any concern about ethical standards, or anything
else, so far, up there . . ."
MR. GROSS stated "It is not a good idea to change the basic nature
of the system because you are angry or upset about a particular
action by someone who holds the office . . . change the person,
don't change the office." CHAIRMAN TAYLOR replied, "If there were
a way to do that, I would . . . unfortunately, there is not."
MR. GROSS concluded his testimony by saying there have been bad
people who have served as attorneys general and he thinks the
people who serve will be worse if they are forced to seek the
office through an election.
CHAIRMAN TAYLOR thanked MR. GROSS for his testimony. With no
further testimony, CHAIRMAN TAYLOR adjourned the meeting at 3:27
p.m.
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