Legislature(2007 - 2008)CAPITOL 120

03/02/2007 01:00 PM House JUDICIARY


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01:07:32 PM Start
01:08:03 PM Confirmation Hearing(s)|| Attorney General
02:39:28 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Confirmation Hearing: TELECONFERENCED
Attorney General, Dept. of Law
-- Testimony <Invitation Only> --
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                         March 2, 2007                                                                                          
                           1:07 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Jay Ramras, Chair                                                                                                
Representative John Coghill                                                                                                     
Representative Bob Lynn                                                                                                         
Representative Ralph Samuels                                                                                                    
Representative Max Gruenberg                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Representative Nancy Dahlstrom, Vice Chair                                                                                      
Representative Lindsey Holmes                                                                                                   
                                                                                                                                
OTHER LEGISLATORS PRESENT                                                                                                     
                                                                                                                                
Representative Kurt Olson                                                                                                       
Representative Bill Stoltze                                                                                                     
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
CONFIRMATION HEARING(S)                                                                                                         
                                                                                                                                
Attorney General                                                                                                              
                                                                                                                                
     Talis Colberg - Palmer                                                                                                     
                                                                                                                                
     - CONFIRMATION(S) HEARD AND HELD  [Confirmation of                                                                         
       Mr. Colberg addressed again on 3/14/07]                                                                                  
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
No previous action to record                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
TALIS COLBERG, Appointee                                                                                                        
Attorney General                                                                                                                
Palmer, Alaska                                                                                                                  
POSITION STATEMENT:  Testified as appointee to the position of                                                                  
Attorney General.                                                                                                               
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR JAY  RAMRAS called the  House Judiciary  Standing Committee                                                             
meeting  to  order at  1:07:32  PM.   Representatives  Gruenberg,                                                             
Coghill, Samuels,  Lynn, and Ramras  were present at the  call to                                                               
order.     Representatives  Olson   and  Stoltze  were   also  in                                                               
attendance.                                                                                                                     
                                                                                                                                
^CONFIRMATION HEARING(S)                                                                                                      
^Attorney General                                                                                                             
                                                                                                                                
1:08:03 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced  that the only order of  business would be                                                               
the  consideration of  the appointment  of Talis  Colberg to  the                                                               
position of Attorney General.                                                                                                   
                                                                                                                                
CHAIR RAMRAS  offered his  belief that  Mr. Colberg  is honorable                                                               
and forthright,  and mentioned that  the committee would  like to                                                               
hear  Mr. Colberg's  thoughts  on issues  of  past, present,  and                                                               
future interest to Alaska.                                                                                                      
                                                                                                                                
1:11:58 PM                                                                                                                    
                                                                                                                                
TALIS   COLBERG,  Appointee,   Attorney  General,   provided  the                                                               
committee  with some  personal information,  including where  his                                                               
parents  came from,  where he  was born,  where he  grew up,  the                                                               
various cities  and towns that  he's lived  in, where he  went to                                                               
school,  his accomplishments  while a  child and  a young  adult,                                                               
where  he'd  gone to  college,  his  marital history/status,  his                                                               
employment history  to date, his  teaching career,  his community                                                               
service, his  continuing education  efforts, and his  hobbies and                                                               
other items of interest to him.                                                                                                 
                                                                                                                                
MR. COLBERG offered that he  has an understanding of the concerns                                                               
that people have regarding the  legal system, and relayed that as                                                               
an attorney he  has done work in the  fields of property/casualty                                                               
law, divorce  law, business law, wills/trusts/probates,  and that                                                               
his  specialty  is  worker's  compensation,  as  both  a  defense                                                               
attorney and  a plaintiff's  attorney.  He  mentioned that  he is                                                               
also  familiar  with circumpolar  health  issues,  the nature  of                                                               
judicial selection  versus election,  "the pros  and cons  of the                                                               
systems that are  available," the history of  Alaska, the history                                                               
of Alaska territorial  politics, the origins of  state Native and                                                               
non-Native  affairs  and  festivals,  and  Alaska  municipal  and                                                               
borough needs and workings.                                                                                                     
                                                                                                                                
MR.  COLBERG  indicated he's  also  had  an opportunity  to  work                                                               
statewide, via the Alaska Humanities  Forum, on various projects,                                                               
including [one]  that may  ameliorate what some  refer to  as the                                                               
urban/rural divide.   He noted also  that he has lived  in Alaska                                                               
for almost  half a  century, was  born in  Alaska, is  older than                                                               
most  who've  been appointed  to  serve  as attorney  general  in                                                               
Alaska, has practiced law longer  than most of the aforementioned                                                               
people when  they were  appointed, has been  active in  the legal                                                               
field and  the university  field -  both as a  student and  as an                                                               
instructor -  and has  been active  in the  civic affairs  of the                                                               
state.                                                                                                                          
                                                                                                                                
MR.  COLBERG, in  response  to a  question  regarding whether  it                                                               
would  be better  to  elect  an attorney  general  as opposed  to                                                               
having the attorney general appointed,  said that his traditional                                                               
answer leans  towards the  idea that  having an  elected attorney                                                               
general seems to  be a way of dividing power  and keeping it from                                                               
being  too concentrated,  though obviously  electing an  attorney                                                               
general  could  also  become  somewhat   obstructive  in  that  a                                                               
political  position   could  be  seen   by  some  people   as  an                                                               
opportunity to  advance a career  as opposed to doing  what might                                                               
be the  appropriate thing.   He spoke  a bit on  the topic  of an                                                               
elected judiciary, and  then posited that the  reason most states                                                               
have an elected attorney general  is because they are comfortable                                                               
with that system.  One of  the valuable points of Alaska's system                                                               
is the  concept that a  governor and  a state are  perhaps better                                                               
served by someone who isn't  trying to raise [campaign] funds and                                                               
promote a  particular agenda but  is instead simply trying  to do                                                               
the job in a more neutral fashion.                                                                                              
                                                                                                                                
1:28:05 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE COGHILL opined that  an appointed attorney general                                                               
would have a loyalty to  the governor whereas an elected attorney                                                               
general would have a loyalty to the populace.                                                                                   
                                                                                                                                
MR. COLBERG said that statutes  stipulate that he is the attorney                                                               
general for the whole state and  must therefore act as an advisor                                                               
to  the governor,  the administration,  the departments,  and the                                                               
legislature.   He surmised  that he was  picked as  being someone                                                               
who  would strive  to do  the job  correctly.   In response  to a                                                               
question, he  indicated that  in order to  serve all  parties, he                                                               
would first  make a [distinction]  between policies and  the law;                                                               
having a  general policy  direction and  being in  alignment with                                                               
that is  one thing,  but if it  gets to the  point of  running up                                                               
against an  issue of  law, it's  important to not  try to  bend a                                                               
legal  opinion  to  fit  the  policy  goal  just  to  please  the                                                               
governor.   He offered that the  DOL staff can be  relied upon to                                                               
give a proper  legal opinion, adding that when  he seeks opinions                                                               
from his  staff, he  is starting off  with a  general presumption                                                               
that the  person is  attempting to give  him the  correct answer,                                                               
which he, in turn,  passes on to those that have  come to him for                                                               
advice.                                                                                                                         
                                                                                                                                
MR. COLBERG,  in response to  questions, relayed that when  he is                                                               
asked  for advice,  he  does  not first  run  that  issue by  the                                                               
governor or  anyone else but  instead simply allows his  staff to                                                               
do their job  and provide him with the information  that he needs                                                               
to fulfill the  request made of him.  He  also surmised that when                                                               
members of his staff are asked  to provide opinions, they are not                                                               
first running  everything by him,  though for certain  issues and                                                               
decisions, his  staff will ultimately  come to him.   In response                                                               
to  further  questions,  he  said  that  although  he  would  not                                                               
advocate for  having the  state's attorney  general be  elected -                                                               
particularly  given  the  current  governor -  he  would  not  be                                                               
adverse to  the concept should  legislation come  forth requiring                                                               
it, though he, himself, would not run for the position.                                                                         
                                                                                                                                
1:40:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  COGHILL  mentioned  state/federal  jurisdictional                                                               
issues,   Alaska  National   Interest   Lands  Conservation   Act                                                               
(ANILCA), fisheries policy, rivers and  other waters, and said he                                                               
would like the state - via  the attorney general and the governor                                                               
-  to ask  the  federal  government to  make  a  decision on  the                                                               
"federal tribal status."  He went on to say:                                                                                    
                                                                                                                                
     For money  purposes, coming into Alaska,  we have money                                                                    
     coming into  various different tribal groups,  but it's                                                                    
     been  kind of  the  way of  establishing a  sovereignty                                                                    
     movement that really is inappropriate,  in my view, and                                                                    
     puts  us  in huge  tension  as  to  how do  we  enforce                                                                    
     criminal  laws, how  do  we  enforce child  enforcement                                                                    
     safety laws, how do we  [enforce] ... all these various                                                                    
     laws.  And  we've had kind of this  flex system because                                                                    
     we have  people acting  like they have  sovereignty, we                                                                    
     have  the feds  that ...  won't address  the issue  but                                                                    
     they keep  giving money and  they keep  calling various                                                                    
     different  things, "tribal,"  which they  won't define.                                                                    
     ... [It]  puts our police  in a bad position,  puts you                                                                    
     in the department of law in  a bad position, puts us as                                                                    
     [legislators]  in   a  bad  position.     So  is  there                                                                    
     something that you, or you  and the governor, ... [are]                                                                    
     focused on [in order to] ... get this thing resolved?                                                                      
                                                                                                                                
MR. COLBERG said  that although there is nothing  specific in the                                                               
works,  that issue  is something  that he  would like  to be  the                                                               
focus of  his tenure  as attorney general,  provided that  he has                                                               
the  time  to devote  to  it.   He  went  on  to offer  a  theory                                                               
regarding  how the  current situation  came  to be,  and said  it                                                               
would be  nice if there were  a way to resolve  the uncertainties                                                               
that currently  litter the  landscape as  a result  of competing,                                                               
inconsistent  jurisdictions.   Many in  the Native  community are                                                               
apprehensive   about   surrendering   what   they   perceive   as                                                               
sovereignty.  He mentioned that  the Alaska Rural Justice and Law                                                               
Enforcement Commission,  of which he  is co-chair, spends  a huge                                                               
amount  of time  trying to  figure out  how to  apply the  Indian                                                               
Child Welfare Act such that the state can play a role.                                                                          
                                                                                                                                
MR.  COLBERG  reiterated that  he  wants  to  make an  effort  to                                                               
resolve  this issue,  to get  the  federal government  to make  a                                                               
determination, adding that  he is willing to  pursue any possible                                                               
avenue.   He mentioned  that he'd  spoken to  Ted Popely  and Don                                                               
Mitchell  (ph), and  offered his  belief  that they  were of  the                                                               
opinion that a  court case that would lead  to critical decisions                                                               
being made,  one way  or the  other, was one  method by  which to                                                               
resolve  the issue.   Mr.  Colberg  pointed out  that although  a                                                               
court case would  provide answers, it might  embitter the parties                                                               
in a way that would be hard to  overcome for quite some time.  He                                                               
posited that simply requesting a  response from Congress might be                                                               
a less confrontational  method, and said he doesn't  know why the                                                               
issue hasn't been addressed in that fashion yet.                                                                                
                                                                                                                                
1:52:00 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LYNN asked what could  be done legally to stop the                                                               
federal  government  from  creating [more]  wilderness  areas  in                                                               
Alaska.                                                                                                                         
                                                                                                                                
MR. COLBERG  said he  will have to  research that  issue further,                                                               
but he  is not  sure whether anything  the state  undertakes will                                                               
preempt federal  legislation.  He  offered his  recollection that                                                               
the state, at one point, was  not generally in favor of a massive                                                               
expansion  of the  state's park  system but  lacked an  effective                                                               
form of resistance.                                                                                                             
                                                                                                                                
REPRESENTATIVE  LYNN referred  to the  Alaska Gasline  Inducement                                                               
Act (AGIA), and asked about potential litigation.                                                                               
                                                                                                                                
MR. COLBERG said he doesn't  envision the AGIA itself engendering                                                               
any litigation;  once a [gas  pipeline] proposal is  agreed upon,                                                               
however, and  steps are taken  towards realizing a  gas pipeline,                                                               
all sorts of  litigation might ensue.  In  response to questions,                                                               
he said he's not had trial  experience since the beginning of his                                                               
legal career,  and that  he will be  relying on  attorneys within                                                               
the DOL  that specialize  in whatever  area of  law a  given case                                                               
might  pertain to;  he surmised  that those  attorneys, when  the                                                               
situation  calls  for  it,  will  in  turn  hire  attorneys  that                                                               
specialize even further  in a particular field for  any case that                                                               
requires it, such as any suit pertaining to oil and gas issues.                                                                 
                                                                                                                                
CHAIR RAMRAS  asked Mr.  Colberg whether he  would be  willing to                                                               
address  the problems  inundating  the  state's current  worker's                                                               
compensation system.                                                                                                            
                                                                                                                                
MR. COLBERG  said he would be  willing to apply what  he knows in                                                               
an  attempt  to  address  those   problems,  though  not  to  the                                                               
exclusion of  all other issues  that are  placed before him.   He                                                               
offered a theory regarding how  the current worker's compensation                                                               
situation  came to  be,  expanded upon  the  difficulties of  the                                                               
situation and  the problems  associated with  possible solutions,                                                               
and  opined  that   the  whole  issue  needs  to   be  looked  at                                                               
comprehensively.                                                                                                                
                                                                                                                                
CHAIR RAMRAS relayed  that the private sector is  desperate for a                                                               
solution, and encouraged Mr. Colberg to help as best he can.                                                                    
                                                                                                                                
2:12:46 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE COGHILL  said he  would like the  attorney general                                                               
to deal with the "reserve  water rights issue," surmising that it                                                               
will require  the DOL to  maintain an aggressive stance  and that                                                               
there is a  willingness on the part of the  Department of Natural                                                               
Resources  (DNR) to  work on  this  issue; with  the "R.S.  2477"                                                               
issue,  though that  one might  not be  so easily  addressed; and                                                               
with the issue of how  the federal government fails to understand                                                               
the  agreement  arrived at  under  the  Alaska National  Interest                                                               
Lands Conservation Act (ANILCA).                                                                                                
                                                                                                                                
MR.  COLBERG expressed  a willingness  to  research those  issues                                                               
further.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  Mr. Colberg  to investigate  the                                                               
issue  of whether  the legislature  should introduce  legislation                                                               
that  would   specifically  give   the  governor   the  immediate                                                               
authority  to  remove a  university  regent  with cause  after  a                                                               
hearing.                                                                                                                        
                                                                                                                                
[Chair Ramras turned the gavel over to Representative Coghill.]                                                                 
                                                                                                                                
MR. COLBERG said he would.                                                                                                      
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked Mr.  Colberg whether he  would be                                                               
willing, on behalf  of the state, to file an  amicus curiae brief                                                               
in a  case going before  the U.S. Supreme  Court on the  issue of                                                               
open primaries.                                                                                                                 
                                                                                                                                
MR. COLBERG said he'd not yet had a chance to review that issue.                                                                
                                                                                                                                
REPRESENTATIVE LYNN asked him to do so.                                                                                         
                                                                                                                                
2:24:16 PM                                                                                                                    
                                                                                                                                
MR. COLBERG,  in response  to questions  about the  direction the                                                               
State  of  Alaska  took  with   regard  to  [the  Venetie  case],                                                             
indicated   that  it   provides  a   good  illustration   of  the                                                               
distinction between a  matter of policy and a matter  of law, and                                                               
acknowledged that  there are still some  issues surrounding [that                                                               
case]  which haven't  been resolved,  though perhaps  not all  of                                                               
those issues  would have  been resolved even  if the  lawsuit had                                                               
been pursued, since litigation  generally only addresses specific                                                               
points.   In response to  a further question, he  reiterated that                                                               
he  would be  willing to  ask Congress  to address  the issue  of                                                               
[tribal sovereignty].                                                                                                           
                                                                                                                                
[Representative Coghill returned the gavel to Chair Ramras.]                                                                    
                                                                                                                                
MR. COLBERG,  in response to  a question, indicated he's  not yet                                                               
had time to consider the issue  of whether any changes need to be                                                               
made regarding how the DOL conducts its business.                                                                               
                                                                                                                                
REPRESENTATIVE COGHILL said one of  the issues the legislature is                                                               
concerned  about pertains  to  criminal sentencing,  particularly                                                               
the plea bargaining process.  He asked Mr. Colberg to comment.                                                                  
                                                                                                                                
MR.  COLBERG mentioned  that a  lack of  resources can  become an                                                               
issue  as the  department attempts  to find  ways to  stretch the                                                               
resources it has  and still get the job done.   He suggested that                                                               
additional resources regarding staffing  levels might result in a                                                               
rise  in conviction  rates, and  spoke of  the department's  high                                                               
turnover rate  and the comparatively  low salary rate  for state-                                                               
employed attorneys; absent more  resources, it's hard to envision                                                               
how to adequately sustain prosecutions and other services.                                                                      
                                                                                                                                
REPRESENTATIVE COGHILL  said he  is concerned that  the resources                                                               
at the  prosecution level are  so slim that misdemeanors  are not                                                               
even  being   dealt  with,  thus   engendering  an   attitude  of                                                               
lawlessness.                                                                                                                    
                                                                                                                                
MR. COLBERG concurred, and relayed  that the Alaska Rural Justice                                                               
and Law Enforcement Commission is  attempting to address the lack                                                               
of sufficient  law enforcement, particularly  in remote  areas of                                                               
the  state, but  there  too the  issue  of adequate  compensation                                                               
arises.                                                                                                                         
                                                                                                                                
2:39:28 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS concurred with  Representative Coghill's points, and                                                               
asked  Mr. Colberg  to articulate  his vision  regarding what  he                                                               
wants to accomplish as attorney general.                                                                                        
                                                                                                                                
MR. COLBERG said his vision is  to try to address the urban/rural                                                               
divide, which he characterized as  getting worse.  In response to                                                               
questions and comments,  he again spoke of  the comparatively low                                                               
salary rate  for state-employed  attorneys and the  difficulty of                                                               
retaining competent staff.  In  response to further questions, he                                                               
said that the  DOL employs approximately 540 people,  that all of                                                               
the attorneys are exempt, that  he's terminated one employee, and                                                               
that in the case of  that termination, although he was ultimately                                                               
responsible for the decision, he did receive input.                                                                             
                                                                                                                                
MR. COLBERG, in  response to questions, said he has  a high level                                                               
of respect for the Alaska  Supreme Court and the current judicial                                                               
system,  and  that   it  would  be  wrong  for  him   to  try  to                                                               
characterize  the Alaska  Supreme Court  as being  activist.   In                                                               
response to  further questions,  he said that  he doesn't  have a                                                               
desire  to  change how  judges  are  selected; that  perhaps  the                                                               
composition of the Alaska Judicial  Council (AJC) is a bit skewed                                                               
with  regard   to  its  attorney   members  because   Alaska  Bar                                                               
Association (ABA)  members don't  participate much when  it comes                                                               
to  voting  on  members  to  serve   on  the  AJC;  that  if  the                                                               
legislature wanted to  it could change statute such  that the ABA                                                               
would have to present the  governor with more possible candidates                                                               
for  the AJC;  that he  would research  whether a  state-employed                                                               
attorney  can serve  on the  AJC; and  that should  a judge  face                                                               
criminal prosecution,  the matter would  have to come  before his                                                               
office.                                                                                                                         
                                                                                                                                
[Members then  provided Mr.  Colberg with a  list of  issues they                                                               
wanted  him  to  address  the   next  time  he  came  before  the                                                               
committee.]                                                                                                                     
                                                                                                                                
[The House Judiciary Standing Committee considered the                                                                          
appointment of Talis Colberg to the position of Attorney General                                                                
again on 3/14/07.]                                                                                                              
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no further business before the committee, the House                                                                 
Judiciary Standing Committee meeting was adjourned at 3:03 p.m.                                                                 

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