Legislature(1999 - 2000)
02/09/2000 01:40 PM Senate JUD
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SJR 14-ELECTION OF ATTORNEY GENERAL
SJR 32-CONST. AM: ELECTED ATTORNEY GENERAL
CHAIRMAN TAYLOR stated this matter was before the committee last
year, and a committee substitute, version G, was adopted
prohibiting any person elected as attorney general (AG) from using
that position as a platform to run for governor. Any person
holding the office will have to wait one full year before filing
for the Office of Governor. The AG will also have the same
residency requirements as the governor, and he must be licensed to
practice law and have practiced for at least five years.
SENATOR WARD, sponsor of SJR 14, stated that currently the AG does
not function as the attorney for the people of Alaska. The people
should have their own AG and not one that works at the discretion
of the governor. Other states have elected AG's, and the debate is
whether or not the State of Alaska should elect its AG. Senator
Ward feels that Alaska should.
Number 380
SENATOR DONLEY commented he supports the concept of an elected AG.
The question is how to structure such a proposal in the
constitution.
SENATOR DONLEY said that one proposal has given the elected AG some
insulation from the governor by allowing him to control his own
department. The other proposal would leave the constitution the
way it is, the governor controlling the Department of Law but the
AG will be elected.
SENATOR WARD stated he prefers that the AG be in charge of the
Department of Law, giving him the most freedom in representing the
people of Alaska.
Number 668
SENATOR KELLY, sponsor of SJR 32, stated his bill only addresses
whether or not the people of Alaska want an elected AG. The
office of attorney general is a statutory creation, therefore, the
legislature has purview to address the changes as it sees fit. SJR
32 does not address the statutory changes that may result from this
legislation.
CHAIRMAN TAYLOR stated he believes this debate needs to take
place, and SJR 14 is probably the version that will come out of
committee. He said the committee will be happy to work with
Senator Kelly if he has any modifications he wants considered.
Number 770
SENATOR DONLEY said he likes the simplicity of SJR 32, and he also
appreciates the comprehensive approach of SJR 14. A problem is
created by statute allowing the governor to issue an executive
order on "do statutes" concerning the executive branch. The
executive branch can simply issue an order changing that law.
The committee can specify, constitutionally, how the powers should
be delineated so it cannot be changed by executive order.
CHAIRMAN TAYLOR noted this is why he likes CSSJR 14 (JUD), which
was adopted last year. Section 1 of the bill addresses this
question with the words: Reorganization. (a) Except as provided
in (b) of this section. By placing this in the constitution, it
"excepts out" the AG from his executive authority and the governor
will no longer have the authority to make these changes.
Chairman Taylor noted that SJR 32 does not list the qualifications
of the AG, but the committee feels there is a need to do so. One
qualification should be a residency requirement of one year.
SENATOR TORGERSON wondered which bill had the best chance of
passing on the Senate floor. He noted that SJR 32 is the shortest
version and because of the Bess v. Ulmer decision it may have the
best chance of passing.
Number 952
CHAIRMAN TAYLOR stated the committee has looked at this issue
before and it is probably time to move it through the process. He
stated it might be wise to consider another alternative--a
statutory change necessary for restructuring the AG's office,
making it more accountable to the legislature and the people of
Alaska.
MR. MARK JOHNSON, speaking on his behalf, said the committee needs
to determine whether representation of the state before state and
federal courts is currently headed in the right direction, or
whether the legislature wants to afford the AG constitutional
status. Both resolutions will give the AG constitutional status.
MR. JOHNSON commented that the most important question to ask is
what powers will the AG and the Department of Law have. Neither
resolution sets forth what Senator Ward considers important--that
the attorney general represents the state and the people. Page two
of SJR 14, section 28, subsection (c) lays out the responsibilities
of the AG but does not define to whom the AG owes an obligation.
MR. JOHNSON noted that the final settlement authority on behalf of
the State of Alaska in litigation does not rest with a department
head, it rests with the AG. This is contrary to what exists in
private industry and most legal situations where the AG is an agent
of a client. In Alaska this situation is different. The decision
on whether or not to settle litigation, in which a department is
involved, does not rest with the commissioner but with the AG.
Number 1445
CHAIRMAN TAYLOR asked Mr. Johnson who he thinks should make that
decision--the legislature, the commissioner or the governor. Who
will the AG be responsible to and who will be his client?
Number 1620
SENATOR TORGERSON asked if by electing the AG is the power of
defending state rights transferred out of the executive branch or
will litigation rest solely with the AG.
MR. JOHNSON answered that the statutes will need to be addressed in
this situation. Through the appropriation process the AG's
settlement authority may be limited.
CHAIRMAN TAYLOR asked if by putting the AG in the constitution will
the legislature accomplish the shift of power so that the people,
the legislature or the governor can become a client of the AG.
MR. JOHNSON responded that he has exchanged information with a law
professor at George Mason University Law School who has referred
him to an article addressing this issue but he has not had the
chance to read it.
CHAIRMAN TAYLOR commented Alaska's AG has always worked for the
governor which leaves the legislature without counsel, and he would
like the committee to look at these issues more before moving the
bill out of committee.
MR. JOHNSON commented the committee will have to make sure the
language is explicit in defining the responsibilities of the AG and
this can be addressed in sec. 28, subsec. 2 of SJR 14.
CHAIRMAN TAYLOR asked Mr. Johnson to review the article he
mentioned and to look at how other states are sharing this power.
MR. JOHNSON responded he would send the committee the requested
information within a week.
CHAIRMAN TAYLOR and SENATOR TORGERSON thanked Mr. Johnson for his
testimony. With no further testimony, CHAIRMAN TAYLOR adjourned
the meeting at 2:20.
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