Legislature(1999 - 2000)
03/06/2000 01:56 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SJR 14-ELECTION OF ATTORNEY GENERAL
CHAIRMAN TAYLOR introduced CSSJR 14(JUD), version 1-LS0588\H,
Kurtz, dated 4/13/99.
JUDGE STEWART stated this is a more complicated subject than most
people recognize and one he has had deep concern for during his
whole professional career. One must look to the history of the
American scheme of government which is set out very expressly in
the Federalists written by Alexander Hamilton and James Madison.
Judge Stewart read from the Federalist Paper 70 dated March 18,
1788.
There is an idea, which is not without its advocates, that a
vigorous executive is inconsistent with the genius of
republican government. The enlightened well-wishers to this
species of government must at least hope that the supposition
is destitute of foundation; since they can never admit its
truth, without at the same time admitting the condemnation of
their own principles. Energy in the executive is a leading
character in the definition of good government. It is
essential to the protection of the community against foreign
attacks; it is not less essential to the steady administration
of the laws; to the protection of property against those
irregular and high-handed combinations which sometimes
interrupt the ordinary course of justice; to the security of
liberty against the enterprises and assaults of ambition, of
faction, and of anarchy. Every man the least conversant in
Roman story, knows how often that republic was obliged to take
refuge in the absolute power of a single man, under the
formidable title of dictator, as well against the intrigues
of ambitious individuals who aspired to the tyranny, and the
seditions of whole classes of the community whose conduct
threatened the existence of all government, as against the
invasions of external enemies who menaced the conquest and
destruction of Rome.
There can be no need, however, to multiply arguments or
examples on this head. A feeble executive implies a feeble
execution of the government. A feeble execution is but
another phase for a bad execution; and a government ill
executed, whatever it may be in theory, must be, in practice,
a bad government.
Those politicians and statesmen who have been the most
celebrated for the soundness of their principles and for the
justice of their views, have declared in favor of a single
executive and a numerous legislature. They have with great
propriety, considered energy as the most necessary
qualification of the former, and have regarded this as most
applicable to power in a single hand, while they have, with
equal propriety, considered the latter as best adapted to
deliberation and wisdom, and best calculated to conciliate the
confidence of the people and to secure their privileges and
interests.
This unity may be destroyed in two ways: either by vesting
the power in two or more magistrates of equal dignity and
authority; or by vesting it ostensibly in one man, subject, in
whole or in part, to the control and co-operation of others,
in the capacity of counselors to him.
JUDGE STEWART commented that when you look at the problem of the
relationship between the AG and the governor you have to look back
to this portion of American history. Alaska's state government is
modeled after the federal government and a departure from this
would be a serious error.
JUDGE STEWART noted that a great majority of the states do elect
the AG, the AG is the attorney for the people and, therefore, the
people should choose him, but this is a shallow concept that does
not recognize what the AG does now and should do. The history of
the large majority of the states that have an elected AG is one
that derives from the latter part of the 1800's--this is when their
state constitutions were written. This was a populist era, it was
common for the AG and many of the heads of state departments to be
independently elected. This was also the history of Alaska from
the time it was formed by the Organic Act in 1913 until Alaska
became a state in 1959. There have been no recent states in the
19th century to elect an AG.
JUDGE STEWART commented that there is and has been for many years
the model state constitution that is promulgated by the League of
American Cities. This constitution provides for only the governor
and legislature to be elected in state government. There are many
distinguished people from academic institutions that are unanimous
in the view that the AG should be appointed by the governor and
serve subject to his pleasure.
JUDGE STEWART, having been an AG, has seen first hand how an
independent AG, not having to answer to anyone except his own view
of what the people might want, can disrupt the operations of the
executive branch. An AG is a legal officer and should not be a
policy making officer.
JUDGE STEWART noted that an elected AG has an ambition to be
governor and will take every step he can to make the governor look
bad to enable his candidacy. This completely frustrates the
fundamental idea that the executive branch should have energy and
vigor. If a governor is expending his energy on fighting a
subordinate rather than addressing the problems of the executive
branch, the whole executive branch has lost the energy of that
leadership. A legal officer should not be selected because of his
popularity but for his ability. An elected AG will likely be
chosen because of his popularity and what is needed is "a tough
S.O.B. that can say no."
Tape 00-12, Side B
JUDGE STEWARD stated it is essential in the relationship between an
attorney and the entity he represents that there be loyalty to that
entity. Prime governmental decisions are made by the legislature--
there cannot be a statewide meeting of 500,000 people to come and
analyze these issues. The people at large are not in a position to
sufficiently make a wise decision on who should be a legal advisor.
JUDGE STEWART addressed Senator Donley's question--how does an AG
balance his loyalty between the governor and the constitution?
JUDGE STEWART said the governor is bound by the constitution and
his department heads are bound by the constitution, and if the
department heads do not agree with the governor's interpretation,
it is their responsibility to resign. Setting up a subordinate so
they can override the governor's decision sets up an automatic
conflict.
Number 2143
CHAIRMAN TAYLOR commented that Senator Donley's question comes to
the nub of the issue that has frustrated many of the legislators.
In the past AG's have found themselves in philosophical
disagreements with a governor and have resigned because of the
disagreement. What should the legislature do when a governor
abuses the constitution and his legal officer, wanting the job too
much, goes along with the governor in things that are destructive?
Is the only alternative impeachment?
JUDGE STEWART responded, "get a new governor--he will be up for
election."
CHAIRMAN TAYLOR noted there are three more years left to the
governor's term.
JUDGE STEWART answered that you make the loudest noise you can
publicly, attacking the governor on his bad decisions.
CHAIRMAN TAYLOR responded it does not matter how much noise is
made, the very same people will be in office for the next three
years. At what point does the person who holds that office resign,
and if they refuse to resign what does the legislature do?
JUDGE STEWART reiterated, "you elect a new governor."
SENATOR DONLEY noted that the United States Constitution requires
that the President of the United States receive a majority of the
electorial college votes, and yet the governor of Alaska can be
elected with as few as twenty percent of the people voting for him.
JUDGE STEWART stated this is a place where the law can be changed,
so that the governor will be elected by a majority of the people.
SENATOR DONLEY asked if Judge Stewart would support a
constitutional amendment requiring the governor to be elected by a
majority.
JUDGE STEWART answered yes, the governor should not be elected by
a plurality that is less than a majority, but it would be a serious
mistake to change the structure of the government based on the bad
performance of a single incumbent who will eventually be gone.
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