Legislature(2007 - 2008)CAPITOL 120
03/14/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s)|| Attorney General | |
| HB175 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 175 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 14, 2007
1:08 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Ralph Samuels
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Bill Stoltze
COMMITTEE CALENDAR
CONFIRMATION HEARING(S)
Attorney General [Continued from 3/2/07]
Talis Colberg - Palmer
- CONFIRMATION(S) ADVANCED
HOUSE BILL NO. 175
"An Act relating to the prohibition of the exercise of the power
of eminent domain against a recreational structure for the
purposes of developing a recreational facility or project."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 175
SHORT TITLE: EMINENT DOMAIN; RECREATIONAL STRUCTURES
SPONSOR(S): REPRESENTATIVE(S) JOHNSON
03/05/07 (H) READ THE FIRST TIME - REFERRALS
03/05/07 (H) JUD, FIN
03/14/07 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
TALIS COLBERG, Appointee
Attorney General
Palmer, Alaska
POSITION STATEMENT: Testified as appointee to the position of
Attorney General.
REPRESENTATIVE CRAIG JOHNSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 175.
DAVE FEEKIN
Alaska Association of Realtors (AAR)
Kenai, Alaska
POSITION STATEMENT: During discussion of HB 175, provided
comments and asked the committee to support the bill and report
it from committee.
DICK MYLIUS, Acting Director
Central Office
Division of Mining, Land and Water
Department of Natural Resources (DNR)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 175.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:08:05 PM. Representatives Coghill,
Samuels, Lynn, Holmes, Dahlstrom, and Ramras were present at the
call to order. Representative Gruenberg arrived as the meeting
was in progress. Representative Stoltze was also in attendance.
^CONFIRMATION HEARING(S)
^Attorney General
1:08:29 PM
CHAIR RAMRAS announced that the first order of business would be
the consideration of the appointment of Talis Colberg to the
position of Attorney General.
REPRESENTATIVE COGHILL asked Mr. Colberg whether he would be
willing to draft a letter to the federal government asking it to
address the issue of tribal status in Alaska.
1:11:02 PM
TALIS COLBERG, Appointee, Attorney General, indicated that he
would draft such a letter but only if the governor asks him to
do so, because that is her decision to make, not his.
REPRESENTATIVE SAMUELS asked Mr. Colberg what his legal advice
to the governor would be should she decide to pursue that issue.
MR. COLBERG said he would endeavor to provide the governor with
the best legal advice available that would support her policy
choices to the extent that they are consistent with the law. In
response to a comment, he opined that it is not inconsistent to
provide legal advice to the governor and to the legislature on
individual issues but still give deference to the person who
appointed him.
REPRESENTATIVE SAMUELS asked whether he should assume that any
legal advice he receives from the Department of Law (DOL) will
simply coincide with the governor's policies.
MR. COLBERG opined that it would be wrong to assume that the
attorney general will always say only what the governor wants to
hear, and suggested that his advice to the governor concerning a
university regent demonstrates that point.
1:21:40 PM
REPRESENTATIVE SAMUELS offered his understanding that in that
situation, the governor had not publicly expressed a desire one
way or the other, and surmised that if the governor does express
an opinion publicly about a matter, then legislators would need
to get separate counsel on that issue if they don't agree with
her, because Mr. Colberg would simply be promoting the
governor's viewpoint.
MR. COLBERG clarified that in the aforementioned situation, the
governor only asked for his advice after she had already asked
for the regent's resignation. In response to a question, he
indicated that he still wishes to address the issues that arise
between the Native and non-Native populations in Alaska.
CHAIR RAMRAS suggested that Mr. Colberg will bring a fresh
perspective to the job. He then asked Mr. Colberg to speak
about some of the disharmony that exists in both the Fairbanks
and Anchorage district attorney offices - because he has been
told that it stems from a morale problem rather than a
compensation problem - what Mr. Colberg perceives as being some
of the personnel issues, and what Mr. Colberg intends to do to
resolve them.
The committee took an at-ease from 1:31 p.m. to 1:33 p.m.
MR. COLBERG said that Richard Svobodny - Chief Assistant
Attorney General, Criminal Division - would be looking into
those issues for him. Mr. Colberg mentioned that Mr. Svobodny
is currently in the Kenai office looking into why there is a
disproportionate prosecution failure rate compared to the
offices in rest of the state. Mr. Colberg said he is
comfortable with Mr. Svobodny's efforts to constructively
address members' concerns about the Anchorage and Fairbanks
offices.
1:36:22 PM
REPRESENTATIVE SAMUELS pointed out that in addition to having
sufficient legal expertise, an attorney general must have the
ability to manage the 280 attorneys currently working for the
DOL. He said that how the personnel issues pertaining to the
two most recent previous directors of the Criminal Division have
been handled gives him pause [and raises questions regarding]
Mr. Colberg's management skills, particularly given that
managing the personnel at the DOL is the bigger part of the job
of attorney general. Representative Samuels sought assurance
that Mr. Colberg's management skills are up to the task.
REPRESENTATIVE DAHLSTROM suggested that it is unreasonable to
expect a candidate for confirmation to not take any action in
his/her prospective role before being confirmed. She cautioned
that many of the facts regarding the aforementioned situations
are not yet known by either legislators or the public, and that
for Mr. Colberg to disclose more information about those
situations could breach confidentiality and the law.
REPRESENTATIVE COGHILL suggested that the committee merely wants
to have a discussion regarding Mr. Colberg's management style.
REPRESENTATIVE SAMUELS concurred, reiterating his view that an
attorney general's management skills are more important than
his/her legal skills.
MR. COLBERG concurred, recounted his experience while serving on
the Matanuska-Susitna (Mat-Su) Borough assembly, acknowledged
that most of his management experience relates to offices with a
small number of personnel, and assured the committee that he
doesn't expect to have to hire a new director of the Criminal
Division every few months.
REPRESENTATIVE LYNN observed that without knowing more about the
situations that were presented to Mr. Colberg, it will be
difficult for the committee to evaluate his actions.
CHAIR RAMRAS offered his understanding that the district
attorney office in Fairbanks has lost many high-profile cases,
including cases involving rape and murder, and yet the office
appears to be pursuing many charges of misconduct involving a
controlled substance in the sixth degree. He asked, therefore,
whether Mr. Colberg feels that a reallocation of prosecutorial
resources at the Fairbanks office would be in order. Chair
Ramras also asked Mr. Colberg how he intends to address the
issue of low morale in that office.
1:46:15 PM
MR. COLBERG offered his recollection that the district attorney
office in Fairbanks has only lost one high-profile sexual
assault case - two years ago - and that the aforementioned
misconduct charges were not occurring independently but rather
in tandem with other charges such as DUI. He suggested,
therefore, that any morale problem which exists in that office
has no correlation to the allocation of prosecutorial resources.
He mentioned that he has been presented with information
suggesting that any morale problems that exist in the various
district attorney offices existed before the new administration
took office, and reiterated that Mr. Svobodny will be addressing
those problems. Mr. Colberg, on the question of prosecutorial
resource allocation, surmised that the information he has
received differs greatly from that which Chair Ramras has
received, and offered his belief that resources are not
currently being allocated in favor of the aforementioned
misconduct charges.
CHAIR RAMRAS asked Mr. Colberg whether he is satisfied with the
prosecutorial resource allocation in the Fairbanks office, and
again asked Mr. Colberg what he intends to do about the low-
morale situation to ensure that the district attorney offices do
a better job of protecting the public.
MR. COLBERG said he will be relying on Mr. Svobodny's
recommendations. He offered his understanding that at one
office, the actual physical location of the building is
contributing to low morale. In response to a question, Mr.
Colberg said he has asked Mr. Svobodny to look into all the
issues arising at the state's various district attorney offices.
1:52:22 PM
REPRESENTATIVE SAMUELS asked whether there is a specific policy
in place at the DOL wherein [legislators'] requests for
information must be forwarded up the chain of command before
being fulfilled.
MR. COLBERG said he has not established such a policy himself,
but acknowledged that perhaps at one point there might have been
a policy in place wherein DOL employees were supposed to
document legislative contacts. Furthermore, perhaps some people
simply feel that they should inform their supervisor when a
legislator contacts them.
REPRESENTATIVE HOLMES said she has recently come across
individuals at the DOL who believe that there is a policy in
place such as Representative Samuels described. She
recommended, therefore, that Mr. Colberg make efforts to inform
all of his staff that they are free to disseminate information
to legislators when they request it.
CHAIR RAMRAS, notwithstanding Mr. Colberg's comments that he
intends to rely on Mr. Svobodny's recommendations, opined that
there is no substitute for a hands-on approach to managing a
department.
MR. COLBERG agreed to issue a statement to his staff regarding
how he would like them to deal with legislative requests for
information.
CHAIR RAMRAS asked Mr. Colberg to comment on the issues raised
as a result of the passage of certain ballot measures.
MR. COLBERG indicated that the DOL is establishing a new
position that will deal with the legal issues which could arise
from the "cruise ship initiative," and said he expects that
[that initiative] will engender litigation. In response to a
question, he indicated that he is not sure whether the same
legal arguments could be raised regarding Washington's container
tax as might be raised regarding the cruise ship initiative,
should litigation result from either or both. In response to a
further question, he said that the DOL's position would be to
defend, to the best of its ability, what the voters passed.
2:07:07 PM
REPRESENTATIVE SAMUELS referred to an upcoming ballot measure
pertaining to establishing a gaming commission, and asked Mr.
Colberg whether he thinks gambling would be good for Alaska.
MR. COLBERG opined that gambling can be very corrosive to
society. In response to further questions, he indicated that
[the state] is currently involved in litigation regarding the
interpretation of the aforementioned ballot measure, and
explained that the National Indian Gaming Commission (NIGC)
requires that the federal ordinances allowing for Indian
gambling must stipulate that the tribe comply with its state's
laws on gambling.
CHAIR RAMRAS, referring to the State v. Amerada Hess, et al.
settlement money, asked Mr. Colberg what proactive approach he
will take regarding any funds engendered by the "cruise ship
head tax" and any ensuing litigation.
MR. COLBERG said he is not aware of any action pending on that
particular tax.
CHAIR RAMRAS suggested to Mr. Colberg that he provide counsel to
the legislature regarding that issue.
REPRESENTATIVE GRUENBERG asked Mr. Colberg to explain the status
of possible litigation against the actuaries responsible for the
Public Employees' Retirement System and Teachers' Retirement
System (PERS/TRS) funds.
MR. COLBERG said the DOL has made a request for an appropriation
of $12 million to pursue that litigation, and that the case is
on hold pending funding. He added that the DOL feels that there
is a good cause of action and recommends going forward with it.
In response to a further question, he said that moneys
appropriated thus far for that purpose have already been spent.
REPRESENTATIVE GRUENBERG indicated that he would want the State
to not let the statute of limitations run out on that case.
MR. COLBERG, in response to a question regarding the McDowell v.
State case, said, "I think the majority was right."
CHAIR RAMRAS asked Mr. Colberg whether he believes that the
"advocacy section" that weighs in on the regulatory filing in
front of the Regulatory Commission of Alaska (RCA) should
[continue to] be located within the Office of the Attorney
General.
MR. COLBERG said yes. He opined that from an institutional
perspective, it is a bad concept for agencies to develop their
own separate legal departments, because doing so could create
consistency problems.
2:26:04 PM
CHAIR RAMRAS referred to Mr. Colberg's 3/13/07 letter regarding
the Alaska Gasline Inducement Act (AGIA), and asked Mr. Colberg
to elaborate.
MR. COLBERG said:
There's been a lot written on that. You have not only
about a 31-page opinion from [former] Attorney General
Marquez talking about that that's, in his view, citing
many of the same cases, older even, that there are
reasons to argue that fiscal certainty could be
justified for 30-45 years, you have at the other end
Senator French wrote a very long opinion saying that
nothing over 2 years, beyond the term of any
legislature, could be found legitimate. And then
ultimately, almost all of the opinions agree that
there's no certainty about the fiscal certainty short
of a court decision.
Now, what it gets into is, always, an interpretation
of Article IX, Section 1, in tandem with Article IX,
Section 4, [of the Alaska State Constitution]. And
Alaska, like about almost 30 states, has this "do not
surrender your taxing authority" coming out of an old,
old, old Georgia case, which is perhaps more than 150
years old, where states anticipating issues arising
from a surrender by one legislature of powers creating
serious problems down the line.
In the limited case law that's available in Alaska
that gives hints about it and from the minutes of the
[Alaska] Constitutional Convention, Delegate Nerland
specifically talked about inducements, and for
industry, and he used the word "inducements" in there,
and the concept is that here, this is a 10-year period
that is triggered by the initiation of giving
something. It's not something that we're promising in
advance of any commitment; it's in response to a
commitment and investment made - it's for a limited
duration.
MR. COLBERG continued:
And can it be challenged? Of course. And who is
going to decide? The precedent is pretty slim all the
way around. But we think it's much more defensible to
make, under the terms described, in the AGIA, a 10-
year concept that's not promised before anything's
done, but after there's been a commitment and an
investment that can be justified and defensible in
court. And ... even [former Attorney General
Marquez's] opinion can be defended, we just think it's
too much of a stretch.
And so the opposite end is Senator French saying
nothing over 2 years will prevail, and he laid out a
very thorough set of arguments. But there is a
qualifier in Article IX, Section 1, that leaves open
the door for some exceptions, and if it had no purpose
- and every word has a purpose in that type of thing
is the presumption - there'd be no reason for that,
and we think this ... fits into the gist of the
comments made when it was created as to what's an
appropriate use for that terminology.
MR. COLBERG, in response to a question regarding [Indian]
gaming, offered his understanding that Kake and Klawock [are
only requesting permission from the NIGC to offer] bingo and
pull-tabs, both of which are currently allowed under state law.
2:31:16 PM
REPRESENTATIVE DAHLSTROM made a motion to advance from committee
the nomination of Talis Colberg to the position of Attorney
General. There being no objection, the confirmation was
advanced from the House Judiciary Standing Committee.
The committee took an at-ease from 2:32 p.m. to 2:38 p.m.
HB 175 - EMINENT DOMAIN; RECREATIONAL STRUCTURES
2:38:17 PM
CHAIR RAMRAS announced that the final order of business would be
HOUSE BILL NO. 175, "An Act relating to the prohibition of the
exercise of the power of eminent domain against a recreational
structure for the purposes of developing a recreational facility
or project."
2:39:05 PM
REPRESENTATIVE CRAIG JOHNSON, Alaska State Legislature, sponsor,
relayed that legislation last year set limitations on the
exercise of eminent domain and elevated someone's personal
residence such that eminent domain could not be exercised for
the purpose of developing a recreational facility or project
unless the homeowner consented to the taking of his/her
residence. House Bill 175 would extend that limitation to a
person's recreational structure, and establishes a limit
regarding the amount of land that would be protected to a radius
250 linear feet around the recreational structure itself - the
same amount of land that would apply in situations involving a
residence; HB 175 would not interfere with a government entity's
exercise of eminent domain for other legitimate purposes. He
relayed that although last year's legislation struck a fine
balance between all interested parties, recreational structures
were not included, and so he is now bringing this issue forward
because he believes that private ownership constitutes the
greatest use of Alaska's land. He mentioned that HB 175 would
not apply to recreational structures owned by partnerships or
businesses.
2:43:12 PM
DAVE FEEKIN, Alaska Association of Realtors (AAR), spoke about
last year's legislation, relayed that the property rights of
"second home" owners is of key importance, and opined that
HB 175 protects the values of those properties. Realtors have
heard from many Alaskans about the importance of recognizing and
protecting a key element for many families and their Alaskan
lifestyles - the ownership and enjoyment of recreational
properties and cabins. He concluded by asking the committee to
support HB 175 and move the bill from committee.
CHAIR RAMRAS, after ascertaining that no one else wished to
testify, closed public testimony on HB 175.
REPRESENTATIVE JOHNSON, in response to a question, said, "It is
standard practice to have access to your land ...; I believe
that that right-of-way does exist, and [the government] ...
couldn't condemn the area to prohibit you from having access to
your property ...."
REPRESENTATIVE GRUENBERG questioned whether the term,
"recreational structure" could be construed to mean a structure
that was constructed for just one season, and asked whether the
bill ought to require some form of permanency with regard to
recreational structures.
REPRESENTATIVE JOHNSON said it is not the intention of HB 175 to
allow someone with recreational property to merely put up a tent
and move it from place to place in order to protect all of the
property; HB 175 is intended to protect the owner of a permanent
recreational structure. He indicated that he doesn't have an
objection to clarifying that point.
REPRESENTATIVE GRUENBERG indicated a willingness to offer a
conceptual amendment that would alter Section 3 such that the
concept of permanence would be incorporated into the definition
of "recreational structure".
2:52:21 PM
DICK MYLIUS, Acting Director, Central Office, Division of
Mining, Land and Water, Department of Natural Resources (DNR),
in response to a question, said that the department doesn't have
any objection to [the bill or the aforementioned proposed
change], and that the department has never exercised eminent
domain in order to acquire recreational properties or access to
recreational opportunities without the consent of the property
owner. He opined that it would be good to better define the
term, "recreational structure", particularly given that both
tent camps and million-dollar structures are all considered to
be recreational structures. In response to a further question,
Mr. Mylius provided comments regarding a particular university
land transfer.
REPRESENTATIVE JOHNSON, in response to a question, reiterated
that the bill is intended to only protect the land that is
within 250 linear feet of the structure, whether that structure
is someone's personal residence or recreational structure. In
response to a comment and question, he indicated that he would
be amenable to an amendment that would clarify that point. In
response to a further question, he said he intends for the
protections afforded by the bill to apply only to a landowner
who holds legal title to the recreational structure.
REPRESENTATIVE DAHLSTROM surmised that several members believe
that the issue of how much land is going to be protected still
needs to be clarified in the bill.
REPRESENTATIVE GRUENBERG suggested that the issues raised by the
committee be addressed via a committee substitute.
[HB 175 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:58 p.m.
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