03/14/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HJR18 | |
| HJR33 | |
| HB127 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 127 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HJR 18 | TELECONFERENCED | |
| += | HB 205 | TELECONFERENCED | |
| += | HJR 33 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 14, 2014
1:12 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Bob Lynn, Vice Chair
Representative Gabrielle LeDoux
Representative Lance Pruitt
Representative Max Gruenberg
MEMBERS ABSENT
Representative Neal Foster
Representative Charisse Millett
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 18
Proposing amendments to the Constitution of the State of Alaska
relating to the office of attorney general.
- HEARD & HELD
HOUSE JOINT RESOLUTION NO. 33
Proposing amendments to the Constitution of the State of Alaska
to increase the number of members on the judicial council and
relating to the initial terms of new members appointed to the
judicial council.
- MOVED CSHJR 33(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 127
"An Act clarifying that the Alaska Bar Association is an agency
for purposes of investigations by the ombudsman; relating to
compensation of the ombudsman and to employment of staff by the
ombudsman under personal service contracts; providing that
certain records of communications between the ombudsman and an
agency are not public records; relating to disclosure by an
agency to the ombudsman of communications subject to attorney-
client and attorney work-product privileges; relating to
informal and formal reports of opinions and recommendations
issued by the ombudsman; relating to the privilege of the
ombudsman not to testify and creating a privilege under which
the ombudsman is not required to disclose certain documents;
relating to procedures for procurement by the ombudsman;
relating to the definition of 'agency' for purposes of the
Ombudsman Act and providing jurisdiction of the ombudsman over
persons providing certain services to the state by contract; and
amending Rules 501 and 503, Alaska Rules of Evidence."
- HEARD & HELD
SPONSOR SUBSTITUE FOR HOUSE BILL NO. 205
"An Act relating to traffic offenses committed in a school zone;
and prohibiting changing lanes in a school zone."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HJR 18
SHORT TITLE: CONST. AM: ELECTED ATTORNEY GENERAL
SPONSOR(s): REPRESENTATIVE(s) STOLTZE
01/21/14 (H) PREFILE RELEASED 1/10/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) STA, JUD, FIN
02/04/14 (H) STA AT 8:00 AM CAPITOL 106
02/04/14 (H) Heard & Held
02/04/14 (H) MINUTE(STA)
02/11/14 (H) STA AT 8:00 AM CAPITOL 106
02/11/14 (H) Moved Out of Committee
02/11/14 (H) MINUTE(STA)
02/12/14 (H) STA RPT 2DP 2NR 2AM
02/12/14 (H) DP: GATTIS, KELLER
02/12/14 (H) NR: KREISS-TOMKINS, LYNN
02/12/14 (H) AM: ISAACSON, HUGHES
02/19/14 (H) JUD AT 1:00 PM CAPITOL 120
02/19/14 (H) Heard & Held
02/19/14 (H) MINUTE(JUD)
02/28/14 (H) JUD AT 1:00 PM CAPITOL 120
02/28/14 (H) Heard & Held
02/28/14 (H) MINUTE(JUD)
03/03/14 (H) JUD AT 1:00 PM CAPITOL 120
03/03/14 (H) Heard & Held
03/03/14 (H) MINUTE(JUD)
03/12/14 (H) JUD AT 1:00 PM CAPITOL 120
03/12/14 (H) -- MEETING CANCELED --
03/14/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 33
SHORT TITLE: CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
SPONSOR(s): JUDICIARY
02/28/14 (H) READ THE FIRST TIME - REFERRALS
02/28/14 (H) JUD, FIN
03/05/14 (H) JUD AT 1:00 PM CAPITOL 120
03/05/14 (H) Heard & Held
03/05/14 (H) MINUTE(JUD)
03/07/14 (H) JUD AT 1:00 PM CAPITOL 120
03/07/14 (H) Heard & Held
03/07/14 (H) MINUTE(JUD)
03/12/14 (H) JUD AT 1:00 PM CAPITOL 120
03/12/14 (H) -- MEETING CANCELED --
03/14/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 127
SHORT TITLE: OMBUDSMAN
SPONSOR(s): RULES BY REQUEST
02/18/13 (H) READ THE FIRST TIME - REFERRALS
02/18/13 (H) STA, JUD
03/12/13 (H) STA AT 8:00 AM CAPITOL 106
03/12/13 (H) Heard & Held
03/12/13 (H) MINUTE(STA)
03/21/13 (H) STA AT 8:00 AM CAPITOL 106
03/21/13 (H) <Bill Hearing Rescheduled to 3/26/13>
03/26/13 (H) STA AT 8:00 AM CAPITOL 106
03/26/13 (H) Heard & Held; Assigned to Subcommittee
03/26/13 (H) MINUTE(STA)
02/07/14 (H) STA AT 3:00 PM CAPITOL 120
02/07/14 (H) Work Session on above Bill
02/25/14 (H) STA AT 8:00 AM CAPITOL 106
02/25/14 (H) Heard & Held
02/25/14 (H) MINUTE(STA)
02/27/14 (H) STA AT 8:00 AM CAPITOL 106
02/27/14 (H) Heard & Held
02/27/14 (H) MINUTE(STA)
03/06/14 (H) STA AT 8:00 AM CAPITOL 106
03/06/14 (H) Moved CSHB 127(STA) Out of Committee
03/06/14 (H) MINUTE(STA)
03/07/14 (H) JUD AT 1:00 PM CAPITOL 120
03/07/14 (H) <Bill Hearing Canceled>
03/10/14 (H) STA RPT CS(STA) NT 1DP 1NR 3AM
03/10/14 (H) DP: LYNN
03/10/14 (H) NR: GATTIS
03/10/14 (H) AM: KELLER, KREISS-TOMKINS, HUGHES
03/12/14 (H) JUD AT 1:00 PM CAPITOL 120
03/12/14 (H) -- MEETING CANCELED --
03/14/14 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE BILL STOLTZE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as prime sponsor on HJR 18.
AVRUM GROSS
Sitka, Alaska
POSITION STATEMENT: Speaking in his capacity as a former
attorney general, testified in opposition to HJR 18.
JOHN TODD
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HJR 33.
BETH LEIBOWITZ, Assistant Ombudsman
Office of the Ombudsman
Legislative Agencies and Offices
Juneau, Alaska
POSITION STATEMENT: Speaking on behalf of the Ombudsman's
Office, presented an overview of HB 127.
JIM POUND, Staff
Representative Wes Keller
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Speaking on behalf of Chair Keller,
presented an amendment to HB 127.
ACTION NARRATIVE
1:12:02 PM
CHAIR WES KELLER called the House Judiciary Standing Committee
meeting to order at 1:12 p.m. Representatives Lynn, LeDoux,
Pruitt, Gruenberg, and Keller were present at the call to order.
HJR 18-CONST. AM: ELECTED ATTORNEY GENERAL
1:12:22 PM
CHAIR KELLER announced that the first order of business would be
HJR 18, Proposing amendments to the Constitution of the State of
Alaska relating to the office of attorney general.
1:12:55 PM
REPRESENTATIVE GRUENBERG requested that testifiers be allowed to
speak as amendments are offered.
1:13:27 PM
CHAIR KELLER closed public testimony.
1:14:06 PM
[Due to technical difficulties, there is no audio from 1:14:09-
1:14:19, 1:14:28-1:14:44.]
1:14:45 PM
REPRESENTATIVE LEDOUX moved to adopt Amendment 1 to HJR 18,
labeled 28-LS1216\A.3, Bullard, 3/12/14, which read:
Page 1, line 16:
Delete "not"
Page 2, line 1:
Delete "unless the person meets the
qualifications for a superior court judge"
Insert "if the person is licensed to practice law
in the State"
1:15:43 PM
REPRESENTATIVE GRUENBERG objected.
1:15:54 PM
REPRESENTATIVE LEDOUX referred to page 1, line 16, through page
2, line 1, which read: "A person is not eligible to serve as
attorney general unless the person meets the qualifications for
a superior court judge." She explained that Amendment 1 allows
an individual to serve as attorney general if he/she is
"licensed to practice law in the State." She noted the sponsor
considers Amendment 1 a friendly amendment.
REPRESENTATIVE GRUENBERG maintained his objection.
1:16:52 PM
REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, prime
sponsor of HJR 18, indicated his agreement that Amendment 1 is a
friendly amendment and is an attempt to improve HJR 18. He
opined that there was confusion regarding qualifications of a
superior court judge as some thought it would invite the Alaska
Judicial Council process. For the most part, he opined that the
qualifications and experience are adequate and is certainly
higher than for other important offices. An [attorney general]
must be 30 years old, a citizen of the United States, have lived
in Alaska 7 years, and not be a felon. Alaska's chief executive
has a much lower threshold and has the judgment to appoint the
attorney general, he pointed out.
1:18:36 PM
CHAIR KELLER clarified that Amendment 1 removes the word "not"
on page 1, line [16], and changes the qualifications for
attorney general to be "licensed to practice law in the State."
Whereas the original language required the qualifications be
that of a superior court judge.
1:19:10 PM
REPRESENTATIVE LYNN surmised that if the committee adopts
Amendment 1, any individual licensed to practice law in Alaska
could be elected attorney general with the vote of the people.
REPRESENTATIVES STOLTZE and LEDOUX responded "yes."
REPRESENTATIVE LYNN related his understanding that within the
current structure the governor has the opportunity to vet the
qualifications of whoever he/she might appoint as attorney
general. However, voters do not have the same opportunities to
interview or compare applicants [as the governor]. Therefore,
he suggested there should be a higher standard. He then stated
his opposition to Amendment 1.
1:20:17 PM
REPRESENTATIVE LEDOUX responded that is the whole idea of voting
during an election. She questioned whether Representative Lynn
is not supporting Amendment 1 because he doesn't trust the
people to vet the attorney general. If so, she noted it appears
he wouldn't support HJR 18 in its entirety. She opined that
either Representative Lynn believes people are capable of
vetting the attorney general through the election process or
not. She indicated the only other alternative would be for the
Alaska Judicial Council to determine which candidate is
qualified and only those people could run for the office of
attorney general.
1:21:18 PM
CHAIR KELLER inquired as to the qualifications for a superior
court judge.
1:22:14 PM
REPRESENTATIVE STOLTZE expressed that his personal reason for
sponsoring HJR 18 is the potential for the Alaska Judicial
Council to insert itself in the process.
1:22:38 PM
CHAIR KELLER read from information provided by his staff, "The
judge of the superior court shall be a citizen of the United
States and of the state, a resident of the state for five years
preceding appointment, have been engaged for not less than five
years immediately preceding the appointment in the act of the
practice of law but need not be licensed to practice law in any
of the United States, and the act of practice of law shall be as
defined for Justices of the Supreme Court." He opined that
there is a difference.
1:23:36 PM
REPRESENTATIVE STOLTZE conveyed that when the governor appointed
Attorney General Renkes he was not admitted to the bar at the
time and had to scurry to obtain his credentials after being
appointed. Representative Stoltze remarked he was not certain
it was a legal requirement as it may have been more of a
political requirement. However, an attorney general would have
had to have a license to appear before the Alaska Supreme Court,
and yet a governor made an appointment of someone without a
current Alaska Bar Association License. More protection is
provided under HJR 18 than the current system, he opined.
1:23:53 PM
REPRESENTATIVE KELLER announced that Representative Gruenberg
removed his objection, but Representative Lynn had not removed
his objection.
1:24:56 PM
REPRESENTATIVE GRUENBERG remarked the language in Amendment 1 is
unclear in terms of the term "qualifications" on page 2, line 1,
as it could mean the statutory qualifications or going through
the Alaska Judicial Council. He pointed out that an individual
cannot become a superior court judge unless nominated by the
Alaska Judicial Council, which he said he did not believe is the
intent of HJR 18. He then noted his opposition to Amendment 1
for the aforementioned reasons. If the attorney general is to
be elected, he opined that it is better for the individual to
meet the qualifications of a [superior court] judge. He related
a scenario wherein an individual could practice law but work for
Legislative Legal Services under a temporary license, or an
individual could have been a federal official, quasi-official,
or even a bankruptcy judge who was not a member of the Alaska
Bar Association. He surmised Representative Stoltze's intent is
for an attorney general to meet statutory qualifications rather
than going through the Alaska Judicial Council.
REPRESENTATIVE STOLTZE responded the whole point of HJR 18 is to
not have the governor, or the Alaska Judicial Council, or the
Alaska Bar Association [involved], but to give the [vote on the
attorney general] to the people of Alaska. He admitted he may
have been careless with the use of the original language, but is
concerned whenever there is an invitation for the Alaska Bar
Association to get between the people of Alaska.
1:28:49 PM
REPRESENTATIVE LEDOUX advised that under AS 22.05.070
Qualification of [Justices for the Supreme Court], that former
Attorney General Dan Sullivan would not have qualified as being
in the active practice of law or anyone who is in an elective
office. She remarked that she trusts the people and whatever
candidate has qualifications will come out in the election
process.
1:29:39 PM
REPRESENTATIVE GRUENBERG advised that AS 22.10.090,
[Qualification of Judges of the Superior Court] includes the
language "... be licensed to practice law in this state." If
the committee is reviewing the language analytically and it is
left up to the people, he questioned why the attorney general
should have to have a license to practice in Alaska. He
clarified that he was putting up "sidebars" on the argument that
not just anyone can be the attorney general, as they must at
least be licensed to practice law.
1:31:30 PM
REPRESENTATIVE LYNN questioned if a person could be fully
qualified to be a superior court judge, but not necessarily
nominated.
REPRESENTATIVE LEDOUX responded "yes."
REPRESENTATIVE STOLTZE stated that many qualified people get cut
off during the nominee stage, which is a central part of this
discussion.
1:32:49 PM
REPRESENTATIVE PRUITT questioned whether the [attorney general]
qualifications should be attached to the statute, which can be
changed by 21, 11, a majority vote in the House and Senate
respectively, and the governor. If the intent is for the
[attorney general] to be "licensed to practice law in the state"
and that is the extent of it, then perhaps that's it rather than
tying it to a statute that has the possibility of being changed.
Therefore, he opined that the language should be clear regarding
the qualifications.
1:34:03 PM
REPRESENTATIVE GRUENBERG informed that the qualifications to
practice law and standards for the Bar exam are set by the
Supreme Court as delegated in statute; and constitutionally the
Alaska Bar Association is under the Alaska Supreme Court. The
phrase "licensed to practice law in this state" is one of the
qualifications in HJR 18, which he interpreted under the Alaska
State Constitution to mean an active license rather than an
inactive or retired license because one is not able to practice
law with an inactive license.
1:36:16 PM
The committee took a brief at-ease.
1:37:32 PM
CHAIR KELLER requested Representative LeDoux withdraw Amendment
1 in order to obtain the testimony of former Attorney General
Avrum Gross on the unamended resolution.
1:38:14 PM
REPRESENTATIVE LEDOUX withdrew Amendment 1.
1:38:42 PM
CHAIR KELLER, in response to Representative Stoltze, said in the
event Representative Stoltze's attorney cared to testify he/she
would be heard as the committee will hear anyone that calls or
comes before it.
1:39:04 PM
REPRESENTATIVE LYNN noted that he was considering offering an
amendment that involves the attorney general running on the same
ticket as the governor and lieutenant governor.
1:40:01 PM
CHAIR KELLER announced HJR 18 would be heard on Monday at 1:00
p.m.
1:40:23 PM
AVRUM GROSS informed the committee he was an assistant attorney
general under former [Attorney General] Ralph Moody and Governor
William Egan at statehood, and then attorney general under
Governor Jay Hammond for six years. He noted he has been an
Alaskan resident for more than 50 years and lives at the old
Chatham Cannery located in Sitko Bay, across Chatham Straits
from Angoon.
MR. GROSS noted that this issue was intensely debated at the
Alaska Constitutional Convention and introduced in at least 10
or 12 legislatures since then. Each body that has considered
this issue in depth, be it Republican, Democrat, Liberal, or
Conservative, has concluded that the present system works well
for Alaska and an elected system would cause unwanted problems,
he opined. In Alaska, the responsibility granted to the
attorney general is unusual in that every single legal function
of the state is performed under the auspices of the attorney
general and the assistants he/she appoints to the department.
Furthermore, the attorney general is responsible for all legal
advice to state agencies and the myriad of daily problems, such
as permits, whether regulations qualify under statutes,
qualifications for benefits by an applicant, federal/state
conflicts for fish and game, et cetera. The aforementioned
occupies a huge amount of the department's efforts. Moreover,
the Department of Law is responsible for offering [legal advice]
to the governor's office, which is the only office with that
responsibility. He explained that the attorney general is the
sole state official who has standing to represent the state in
court and is responsible for enforcing all of the criminal laws
of the state through appointed district attorneys and assistant
district attorneys.
MR. GROSS described other states with an elected attorney
general as very different from Alaska. For instance, in
Washington and California criminal prosecutions are handled by
elected district attorneys and are not subject to the attorney
general's supervision at all. In every state with an elected
attorney general, the governor has an extensive staff of
attorneys just to advise his office and in many of these states
individual departments have their own attorneys hired by and
responsible to commissioners. This system makes consistency
with regard to the legal advice dictated from the attorney
general's office difficult or impossible as the attorney general
is called in after the fact. When the attorney general is the
sole legal official of the state, the attorney general's actions
have an enormous impact on the day-to-day operations of state
government, including the fact that prosecution of criminal law
is an important public function in which the public is seriously
interested. Maintaining a smooth operation of state government
under consistent legal advice is critical. Moreover, he said,
advising the governor of legal problems before they occur is
very important to the success of the governor's administration.
Alaska's framers desired centralized executive power and
determined that the attorney general should be appointed by the
governor who, under the Alaska State Constitution, is solely
responsible to the people of Alaska for the effective operation
of state government. The governor is the one statewide elected
official who cannot make excuses or blame anyone else. He
recalled a statewide call-in show when Governor Hammond, in
response to a caller, said he, as the governor was the chief law
enforcement official in the state.
MR. GROSS posed a scenario depicting why the attorney general
appointment and control by the governor is so integral to state
policy. Suppose a gubernatorial candidate who runs on a
platform addressing domestic violence is elected and this
governor directs the commissioner of the Department of Public
Safety [and the elected attorney general] that he wants more
energy spent on the domestic violence issue, a task force
established, et cetera. When the governor is then up for re-
election and the public complains that he/she didn't lower
domestic violence, the governor can point to the elected
attorney general and say it is his/her fault. The elected
attorney general can blame the governor and say he gave it every
priority he thought it deserved in the context of the overall
criminal justice operation. He questioned, who Alaskans are
supposed to believe under those circumstances. Under the Alaska
State Constitution, the theory is that the governor is to be
responsible for everything as the governor has the authority to
appoint people to carry out his programs.
MR. GROSS noted that the Department of Law is no different than
any other department and should ensure that state government
runs well and that the governor is responsible for what happens.
He noted that most of the efforts for change are based around
the notion that the attorney general is a mouthpiece for the
governor, that the attorney general is too involved in the
political process, and that making him the people's attorney by
electing the attorney general would alleviate that problem.
However, that is not the case. During his nine years of
experience and from everything he knows about the Department of
Law, he opined that if an attorney general wants to help the
governor, politically or otherwise, he does the governor service
by telling the truth, as in reality. He remarked that the
governor is no different than any other client-attorney
relationship. The attorney general in this state is not the
law, but he's a lawyer who gives opinions to the governor, and
to the state agencies. If he/she gives a bad opinion and gets
the governor in trouble, people have access to freely use the
courts. He reiterated that the attorney general does the
governor no favor by not telling him the best legal course he
could follow, or that what the governor plans to do is not
consistent with law, he opined.
1:52:16 PM
MR. GROSS continued that elected attorneys general have their
own political agenda and it could be that the attorney general
position is a stepping stone to the position of governor or
senator, so it is often not in the attorney general's best
interest to make the governor look good. He questioned how the
elected attorney general is going to raise money and from whom,
trial lawyers or corporations. He opined that the present
system is not broken as it has worked very well, and suggested
the legislature not fix it. Thank you for the opportunity to
testify. I would be happy to answer any questions.
1:55:13 PM
CHAIR KELLER announced HJR 18 would be set aside.
HJR 33-CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
1:57:18 PM
CHAIR KELLER announced that the last order of business would be
HJR 33, "Proposing amendments to the Constitution of the State
of Alaska to increase the number of members on the judicial
council and relating to the initial terms of new members
appointed to the judicial council." [Before the committee is
CSHJR 33, Version 28-LS1509\U, Wallace, 3/3/14.]
1:58:11 PM
CHAIR KELLER opened public testimony.
1:58:18 PM
JOHN TODD stated he fully concurs with the language of HJR 33
but it does not go far enough to address other serious issues in
the legal system. He related his own experience with a court
violating its own laws as set out in the Alaska Rules of
[Professional] Conduct, specifically Rule 11. He stated support
for HJR 33. He then highlighted a statement from Mike Huckabee
in which he referred to the judicial system as immoral, and
noted that U.S. Senator Lisa Murkowski had rather derogatory
comments about the legal system at the national level. The
current process is one of selecting lawyers to be considered for
judgeships with input from fellow lawyers who will defend their
own regardless of the facts, he opined. This legislation goes a
long way toward correcting a flawed process.
2:03:58 PM
CHAIR KELLER closed public testimony.
2:04:40 PM
The committee took a brief at-ease.
2:04:59 PM
CHAIR KELLER pointed out that the next committee of referral for
HJR 33 is the House Finance Committee and there is a companion
[resolution] to HJR 33 in the Senate that is headed to the House
Finance Committee. He then noted his preference for moving HJR
33 out of the House Judiciary Standing Committee today.
REPRESENTATIVE GRUENBERG suggested that the House or Senate
version of HJR 33 [be assigned] to the House Judiciary Standing
Committee rather than "punting" it to another committee,
otherwise this committee will not have an opportunity to review
the Senate's revisions.
CHAIR KELLER assured the committee that the Senate Judiciary
Standing Committee is giving the resolution a thorough vetting
as is the House Judiciary Standing Committee. The two versions
will come together in the [House] Finance Committee, he
explained.
2:07:05 PM
REPRESENTATIVE LYNN moved to report CSHJR 33, Version 28-
LS1509\U, Wallace, 3/3/14, out of committee with individual
recommendations and the accompanying fiscal notes.
2:07:44 PM
REPRESENTATIVE GRUENBERG objected, noting that his questioning
and statements on the record speak for themselves. He then
opined that members of this committee should have an opportunity
to weigh in on potential Senate Judiciary Standing Committee
changes. This is an Alaska State Constitutional amendment
dealing with the judiciary and not an Alaska State
Constitutional amendment dealing with the financial process in
this institution. He related his impression that people are
anxious to pass the bill, yet it is too important to rush
through. He opined that the House Judiciary Standing Committee
has a responsibility and if the committee does not exercise that
responsibility on an issue like this, then members can hardly
complain at what happens in the rest of the process. The
committee cannot endorse HJR 33 if the committee has not vetted
it themselves and this is something to be taken seriously, he
opined.
2:09:22 PM
CHAIR KELLER offered that the committee agrees that HJR 33 is a
very important and serious matter as it proposes a vote to go
before the people, particularly on this topic. Therefore, he
surmised that Representative Gruenberg did not mean to say that
the House Judiciary Standing Committee hasn't given HJR 33 a
thorough vetting.
REPRESENTATIVE GRUENBERG noted his agreement that the House
Judiciary Standing Committee has had opportunities [to vet HJR
33], but pointed out he does not know where the companion to HJR
33 is in the Senate and whether it is identical to Version U
that is before this committee. If the Senate's resolution is
identical he said he would feel more comfortable. However,
there are unknowns in terms of what the companion bill will be
if it passes the Senate. He reiterated that the judicial system
works well, the system of selecting judges works well, and the
Alaska State Constitution is relatively new.
2:11:15 PM
CHAIR KELLER interrupted Representative Gruenberg and asked that
he speak to his objection as his comments are clearly on the
record by prior testimony and discussion. He said he does not
want the committee to get into a debate.
REPRESENTATIVE GRUENBERG responded that he thought this was the
time to debate HJR 33.
CHAIR KELLER related that HJR 33 has been debated and currently
there is a motion to move HJR 33. He reminded Representative
Gruenberg of his objection and that he should be speaking to his
objection to moving HJR 33 out of committee.
REPRESENTATIVE GRUENBERG, noting that he is not arguing with
Chair Keller, related his understanding that this is the time to
debate the main issue on the content of HJR 33 and whether it
should move out of committee.
2:12:19 PM
The committee took a brief at-ease.
2:13:12 PM
CHAIR KELLER explained that when legislation is before the
committee for debate the legislation is first before the
committee for presentation during which questions can be asked
and members can interact with the sponsor and hear from various
witnesses who call in to testify. After questions are answered,
the legislation is then moved before the committee for
discussion. He explained that in this case, when he closed
public testimony and said the resolution is before the committee
for discussion, instead of discussion there was a motion to move
the resolution out of committee to which Representative
Gruenberg objected. Therefore, the question before the
committee is whether or not HJR 33 should move from committee.
2:14:32 PM
The committee took a brief at-ease.
2:15:34 PM
CHAIR KELLER then requested that Representative Gruenberg speak
to a procedural motion to move the resolution out of committee,
but not to go beyond that. In further response to
Representative Gruenberg, Chair Keller clarified that a non-
debatable procedural motion is before the committee and he will
call the roll. He then requested the roll call vote be taken.
A roll call vote was taken. Representatives LeDoux, Lynn,
Pruitt, and Keller voted in favor of reporting CSHJR 33, Version
28-LS1509\U, Wallace, 3/3/14, from committee. Representative
Gruenberg voted against it. Therefore, CSHJR 33(JUD) was
reported from the House Judiciary Standing Committee by a vote
of 4-1.
2:17:45 PM
The committee took an at-ease from 2:17 p.m. to 2:29 p.m.
HB 127-OMBUDSMAN
2:31:22 PM
CHAIR KELLER announced that the final order of business would be
HB 127, "An Act clarifying that the Alaska Bar Association is an
agency for purposes of investigations by the ombudsman; relating
to compensation of the ombudsman and to employment of staff by
the ombudsman under personal service contracts; providing that
certain records of communications between the ombudsman and an
agency are not public records; relating to disclosure by an
agency to the ombudsman of communications subject to attorney-
client and attorney work-product privileges; relating to
informal and formal reports of opinions and recommendations
issued by the ombudsman; relating to the privilege of the
ombudsman not to testify and creating a privilege under which
the ombudsman is not required to disclose certain documents;
relating to procedures for procurement by the ombudsman;
relating to the definition of 'agency' for purposes of the
Ombudsman Act and providing jurisdiction of the ombudsman over
persons providing certain services to the state by contract; and
amending Rules 501 and 503, Alaska Rules of Evidence." [Before
the committee is CSHB 127(STA).]
2:34:09 PM
BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman,
Legislative Agencies and Offices, explained that Section 1 would
unfreeze the ombudsman's salary and allow step increases as the
position is a high level salary that is not set like a
commissioner or director; rather it is currently frozen at Range
26, Step A. Therefore, the ombudsman, unlike her staff,
currently never receives a pay increase.
2:35:05 PM
REPRESENTATIVE GRUENBERG related his understanding that the
ombudsmen is not under the jurisdiction of the State Officers
Compensation Commission.
2:35:33 PM
MS. LEIBOWITZ replied yes, explaining that since the ombudsman
is in the legislative branch, the executive salary setting has
nothing to do with the ombudsman's office.
2:35:44 PM
REPRESENTATIVE GRUENBERG inquired as to whether the ombudsman
would prefer to be under the State Officers Compensation
Commission.
MS. LEIBOWITZ responded "No," specifying that the ombudsman
would simply like the salary provision to remain similar to what
it is now, but allow step increases. In further response to
Representative Gruenberg, Ms. Leibowitz confirmed the language
of HB 127 is sufficient to allow the step increases.
2:36:14 PM
MS. LEIBOWITZ, returning to her review of HB 127, explained that
Section 2 clarifies an ambiguous issue regarding the ombudsman's
office ability to use the personal services contract provision
that is provided for other legislative agencies under AS
24.10.060(f). She opined that Legislative Affairs Agency
personnel believe the ombudsman's office can [use the personal
services contract]. However, the ombudsman's office would like
this [confirmed] so it is not required to go through the
legislative history of several different versions of Title 24.
2:37:01 PM
REPRESENTATIVE GRUENBERG questioned whether any legislative
contracts have to go through the State Procurement Code or
solely through Legislative Council. In the event HB 127 passes,
what provision would apply: the State Procurement Code,
Legislative Council, or both.
MS. LEIBOWWITZ answered that neither is the case as personal
services contracts basically allow temporary staff on board.
Since it is not a procurement matter, it does not require
Legislative Council. As the ombudsman's office has to budget,
she related her understanding is that the ombudsman can make
this determination, she opined.
2:37:52 PM
MS. LEIBOWITZ deferred to Chair Wes Keller regarding Sections 3-
5 as the ombudsman's office does not support those sections.
2:38:12 PM
CHAIR KELLER stated he was the sponsor of [the amendments] to
those sections in the House State Affairs Standing Committee.
He then noted there is an amendment pending in the House
Judiciary Standing Committee which would increase reporting and
formalize the interaction process between the ombudsman's office
and the legislature. The ombudsman's office is complaint driven
and these sections request information on the complaints the
ombudsman decides not to investigate, he explained.
2:39:01 PM
MS. LIEBOWITZ, returning to her presentation, explained that
Section 6 deals with the ombudsman's powers during an
investigation. Currently, AS 24.55.160(a)(4) provides that
"notwithstanding other provisions of law, have access at all
times to records of every state agency, including confidential
records, except sealed court records, production of which may
only be compelled by subpoena, and except for records of active
criminal investigations and records that could lead to the
identity of confidential police informants." She highlighted
that this is the one reference as to "state agency" in the
Ombudsman Act rather than "agency." Since the ombudsman has
jurisdiction over municipalities and school districts that opt
in, and within the criminal division section over some private
contractors within HB 127 the intention of HB 127 is to delete
"state" so the legislation simply refers to an agency, she
explained.
2:40:30 PM
REPRESENTATIVE GRUENBERG questioned if "state agency" or
"agency" is defined.
MS. LIEBOWITZ specified that "agency" is defined in AS
24.55.330.
REPRESENTATIVE GRUENBERG asked if "state agency" is defined.
MS. LIEBOWITZ responded "No," and explained that the ombudsman
statute references "agency" and that is included in the
definition "state departments" and goes through a long list of
state and municipal entities that can be included.
2:41:21 PM
MS. LEIBOWITZ, continuing her presentation, stated that Section
7 adds an anti-waiver provision specifically targeted to allow
state agencies or other entities to share advice it has received
from the Department of Law should the agency so choose, as the
ombudsman's office does not have mandatory access. In the past,
state agencies have provided communications with the Department
of Law and on occasion it has happened by accident and sometimes
deliberately in order to explain what appeared to be an
otherwise unexplainable action on the agency's part. She
related the ombudsman's understanding that agencies sharing
communications from the Department of Law with the ombudsman's
office places the agency in danger of completely waiving its
attorney-client privilege in a manner that could harm it in
litigation with a private litigant. Therefore, the ombudsman's
office requests that the state agencies be allowed to be candid
without causing them additional damage.
REPRESENTATIVE GRUENBERG pointed out that AS 25.55.330(2) is a
lengthy definition of agency.
2:43:08 PM
MS. LEIBOWITZ remarked that within Section 8, the ombudsman
currently has the privilege not to testify in a judicial
proceeding, which is typical of ombudsman acts created by state
governments. She explained that the ombudsman's privilege is
not express regarding its files and documents acquired [during
an investigation]. Although the aforementioned has not been an
active problem, she related that the ombudsman would like the
privilege made very clear that it does not testify or produce
documents from its office.
REPRESENTATIVE GRUENBERG asked if this applies only to judicial
or administrative proceedings, but not to legislative hearings.
He posed a scenario wherein the ombudsman prepared a report
leading to a legislative hearing under oath with subpoena
powers, and the ombudsman's office could be compelled to testify
as it is a branch of the legislature.
2:44:34 PM
MS. LEIBOWITZ confirmed that the ombudsman has not attempted to
remove itself from legislative subpoena power. Returning to her
presentation, she referred to Section 9, which would allow the
ombudsman to adopt procurement regulations similar to those used
by the remainder of the legislative branch. The language in
Section 9 also makes it clear that when the ombudsman uses
her/his discretion to hire an investigator it does not require a
procurement request for proposals or competitive bids, she
opined.
CHAIR KELLER requested Ms. Leibowitz skip Sections 10-11 as they
are proposed to be deleted.
2:45:45 PM
REPRESENTATIVE GRUENBERG, speaking as a member of the
Legislative Council, asked whether the intention is to prepare
regulations that solely apply to the ombudsman's office. He
opined that Legislative Council would likely benefit from
knowing the thinking of the ombudsman's office regarding whether
regulations should be adopted for other aspects of legislative
procurement.
MS. LEIBOWITZ agreed to share the ombudsman's office regulations
with Legislative Council as it is the only legislative branch
entity that actually does any form of procurement regulations.
Since the ombudsman's office has been given this particular
status, it wants it to work as well as possible, she opined.
2:46:34 PM
MS. LEIBOWITZ moved on to Section 12, which would require a two-
thirds majority to ratify a statute change that would affect
Rules of Evidence 503 regarding attorney-client privilege and a
change to the existing statutory privilege against testifying.
REPRESENTATIVE GRUENBERG commented that this is the
constitutional way to do an indirect court rule amendment.
2:47:43 PM
MS. LEIBOWITZ, continuing her presentation, advised that since
Section 13 deals with the effective date for Sections 10-11 and
there are amendments to delete Sections 10-11, she would not
comment further. Section 14 is similar to Section 12 in that it
deals with indirect court rule amendments and basically provides
that Sections 7-8 will only take effect if it a two-thirds
majority vote is received.
2:48:35 PM
CHAIR KELLER reiterated that the ombudsman's office is part of
the legislature and the legislature not only chooses the
ombudsman but sets the salary, can fire the ombudsman, and sets
the rules. The ombudsman's office has investigative powers and
is complaint driven. Therefore, a citizen of Alaska who feels
he/she has received a raw deal by the administration can lodge a
complaint with the ombudsman's office which has a process with
which to respond, investigate, and determine if the complaint
has merit. He remarked there are important "clean up"
provisions in HB 127.
2:50:08 PM
MS. LEIBOWITZ characterized Chair Keller's summary as
reasonable, although she pointed out that the legislature
originally and deliberately created the ombudsman, established
the salary in statute, and established the procedures of the
office that would be set by the ombudsman. The legislature
appoints the ombudsman and can fire the ombudsman, but very
deliberately made the decision that this entity that responds
directly to citizens would function independently to a large
extent, she opined.
2:50:43 PM
CHAIR KELLER agreed, announced public testimony was closed, and
stated HB 127 is before the committee for amendments and debate.
2:51:08 PM
CHAIR KELLER moved to adopt Amendment 1, labeled 28-LS0088\E.1,
Gardner, 3/11/14.
Page 2, line 11, following "if":
Delete "the chair of"
Page 2, line 12, following "requests an":
Insert "ombudsman"
Page 2, line 18, following "complainant":
Delete "consents to disclosure"
Insert "requests"
REPRESENTATIVE PRUITT objected for purposes of discussion.
2:51:34 PM
JIM POUND, Staff, Representative Wes Keller, Alaska State
Legislature, advised that Sections 3-5 of this legislation are
based upon communications directly between the ombudsman's
office and the legislature via the Administration Regulation
Review Committee, which has the authority to operate and meet
year round and represents both houses of the legislature.
Amendment 1 proposes on page 2, line 11, deleting of the
language, "the chair of" which would then read "if the
Administrative Regulation Review Committee requests an
investigation on behalf of the legislature or". He explained
that the full committee votes and if the committee decides to
investigate it will submit an investigation request. Also, the
ombudsman does have the right to say "no," as it is a "may"
investigate scenario, he opined. In response to a committee
member's concern that the language in HB 127 authorizes the
Administrative Regulation Review Committee the power to
investigate, following the language "requests" the language
"ombudsman" was inserted specifically to state the
Administrative Regulation Review Committee has the authority to
"request" the ombudsman to investigate. With regard to the
concern by the ombudsman's office as to how an individual files
a complaint and whether or not they intend for their name to be
attached to the [complaint], the language "consent to disclose"
on page 2, line 18, was changed to "requests", which requires
the actual complainant to request their name be included if they
so choose.
2:54:29 PM
CHAIR KELLER, reminding the committee that the ombudsman does
not support the inclusion of Sections 3-5, explained that he
proposed Amendment 1 because he determined that the legislature
has an interest in reviewing what the ombudsman's does and the
degree of independence the office holds from the legislature, so
that the legislature can evaluate whether or not the complaints
are valid. He opined it is completely appropriate for the
committee to consider these amendments, and added that future
amendments can be brought forth that will further refine or
remove Sections 3-5, at the discretion of the House Judiciary
Standing Committee.
2:55:38 PM
REPRESENTATIVE GRUENBERG moved that Amendment 1 be broken into
three parts, with one for each section involved in HB 127.
2:56:27 PM
CHAIR KELLER announced that he would withdraw Amendment 1 until
the next meeting and put the changes in and work from a
[committee substitute], although he stated he would rather the
amendment not be split due to time restrictions.
2:56:45 PM
REPRESENTATIVE GRUENBERG withdrew his [motion].
2:57:42 PM
REPRESENTATIVE PRUITT related his understanding that Amendment 1
allows the Administrative Regulation Review Committee authority
to request an investigation, while requests to include the name
of the complainant on the complaint and the reason the ombudsman
does not investigate complaints will only go to the chair of the
Administrative Regulation Review Committee. Therefore, the
initial investigation [request] comes from the whole committee,
while the communications back is only required to go to the
chair.
MR. POUND responded "That is correct."
2:58:58 PM
REPRESENTATIVE PRUITT removed his objection. There being no
further objection, Amendment 1 was adopted.
2:59:18 PM
REPRESENTATIVE PRUITT moved to adopt Amendment 2, labeled 28-
LS0088\E.3, Gardener, 3/12/14.
Page 1, lines 8 - 11:
Delete "relating to the definition of 'agency'
for purposes of the Ombudsman Act and providing
jurisdiction of the ombudsman over persons providing
certain services to the state by contract or grant and
over instrumentalities of the state;"
Page 4, lines 7 - 30:
Delete all material.
Renumber the following bill sections accordingly.
Page 5, lines 15 - 18:
Delete all material.
Renumber the following bill section accordingly.
Page 5, line 22:
Delete "sec. 12(a)"
Insert "sec. 10(a)"
Page 5, line 24:
Delete "sec. 12(b)"
Insert "sec. 10(b)"
CHAIR KELLER objected.
2:59:38 PM
REPRESENTATIVE PRUITT explained stated that Amendment 2 deletes
Sections 10, 11, and 13, with Sections 10-11 being the key
pieces. The ombudsman's office requested in Section 10 that the
legislature clarify whether or not the ombudsman has
jurisdiction over the Alaska Bar Association, which is
essentially "instrumentality," and adds to its current
jurisdiction contracts awarded by state agencies that provide
prison, or halfway house, or similar residential services. He
specified that Amendment 2 deletes those provisions.
REPRESENTATIVE LEDOUX surmised then that under Amendment 2 the
legislature is not only taking out the prison, halfway house,
[or similar residential services on behalf of the Department of
Corrections], HB 127 is also taking out "instrumentality." She
asked if the Alaska Bar Association will clearly not be subject
to the jurisdiction of the ombudsman if Amendment 2 passes
3:01:52 PM
CHAIR KELLER responded "Definitely not," as under AS 08.08.010
the Alaska Bar Association was created by the Alaska State
Legislature and the ombudsman is an investigative arm of the
legislature, and therefore has the authority to investigate the
Alaska Bar Association. However, he added that this is a
provision has a history of contention as essentially the
ombudsman is requesting clarification on whether or not the
Alaska Bar Association is under the investigative jurisdiction
of the ombudsman's office. By passing Amendment 2, the
legislature does not clarify that, and avoids the question for
now.
3:03:03 PM
REPRESENTATIVE LEDOUX questioned as to why the legislature would
not want to clarify [whether or not the Alaska Bar Association
is under the investigative jurisdiction of the ombudsman's
office]. What is the down side of determining whether it is
under the jurisdiction or not, she asked.
REPRESENTATIVE PRUITT explained that he does not want HB 127 to
not pass because of the controversy and potential jurisdiction
issues surrounding this particular piece of it. Therefore, he
proposed Amendment 2.
REPRESENTATIVE LEDOUX surmised then that if the ombudsman
requests clarification, it would be best to place the clarifying
language in an entirely separate bill so HB 127 can make its way
through the legislature.
CHAIR KELLER suggested that is a good question to ask the
ombudsman as this is the ombudsman's housekeeping legislation.
3:06:12 PM
REPRESENTATIVE GRUENBERG stated he previously made a mistake in
that he would prefer not to include Amendment [1] in the
[committee substitute] but rather to divide the [pieces] of
Amendment 1 as he prefers to debate each separate piece. He
said the ombudsman should have jurisdiction to investigate
regarding the Alaska Bar Association. He then requested the
committee not incorporate [Amendment 2] into a committee
substitute, and also revisit Amendment 1 and debate each
separate piece.
3:07:23 PM
CHAIR KELLER offered that Representative Pruitt could withdraw
his motion [to adopt Amendment 2] and noted there was extensive
testimony in the House State Affairs Standing Committee
regarding concerns contractors have had.
3:08:06 PM
CHAIR KELLER withdrew his objection to Amendment 2.
REPRESENTATIVE PRUITT withdrew proposed Amendment 2.
[HB 127 was held over.]
3:10:13 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:10 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HJR 18 Proposed Amendment A.5.pdf |
HJUD 3/14/2014 1:00:00 PM |
HJR 18 |
| HJR 18 Proposed Amendment A.3.pdf |
HJUD 3/14/2014 1:00:00 PM |
HJR 18 |
| CSHB 127 (STA) Proposed Amendment E.3.pdf |
HJUD 3/14/2014 1:00:00 PM |
HB 127 |