Legislature(1997 - 1998)
03/19/1997 01:30 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
March 19, 1997
1:30 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Drue Pearce, Vice-chair
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 69
"An Act relating to designating flunitrazepam as a schedule IVA
controlled substance; and providing for an effective date."
MOVED SSHB 69 OUT OF COMMITTEE
SENATE BILL NO. 114
"An Act relating to contributions from employee compensation for
political purposes; and prohibiting certain kinds of discrimination
against employees for political purposes."
HEARD AND HELD
SENATE BILL NO. 113
"An Act placing the administrative director of the court system in
the public employees' retirement system; and providing for an
effective date."
HEARD AND HELD
SPONSOR SUBSTITUTE FOR SENATE JOINT RESOLUTION NO. 10
Proposing amendments to the Constitution of the State of Alaska
relating to the election and the duties of the attorney general.
HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
HB 69 - No previous Senate Committee action.
SB 114 - No previous Senate Committee action.
SB 113 - No previous Senate Committee action.
SJR 10 - See Judiciary minutes dated 2/19/97 and 2/26/97.
WITNESS REGISTER
Representative Al Vezey
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of HB 69
George Taft, Director
Scientific Crime Detection Laboratory
Department of Public Safety
5500 E. Tudor Rd.
Anchorage, AK 99507-1221
POSITION STATEMENT: Answered questions on HB 69
Lauree Hugonin
Alaska Network on Domestic Violence
and Sexual Assault
130 Seward St., Rm. 501
Juneau, AK 99801
POSITION STATEMENT: Supports HB 69
Jayne Andreen
Council on Domestic Violence
and Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, AK 99811-1200
POSITION STATEMENT: Supports HB 69
Laura Chase
Staff to Senator Taylor
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified for sponsor of SB 114
Brooke Miles
Alaska Public Offices Commission
Department of Administration
P.O. Box 110222
Juneau, Alaska 99811-0222
POSITION STATEMENT: Commented on SB 114
Don Wanie, Director
Division of Finance
Department of Administration
P.O. Box 110204
Juneau, AK 99811-0204
POSITION STATEMENT: Commented on SB 114
Tuckerman Babcock
Staff to Senator Green
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified for sponsor of SJR 10
Chris Christensen
Staff Counsel
Alaska Court System
820 W. 4th Ave.
Anchorage, AK 99501
POSITION STATEMENT: Opposed to SB 113
ACTION NARRATIVE
TAPE 97-23, SIDE A
Number 00
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:38 p.m. and announced the presence of Senators Parnell
and Ellis. The first order of business before the committee was HB
69.
HB 69 ROHYPNOL AS SCHEDULE IV-A DRUG
REPRESENTATIVE AL VEZEY , sponsor of the measure, gave the following
overview of the legislation. Flunitrazepam belongs to the Schedule
IV class of medications known as benzodiazepines. It came on the
market about the time Alaska enacted its Title 11 statutes and did
not get incorporated into that title. The drug has shown up on the
crime scene during the last two years, and is rapidly becoming the
drug of choice for those who wish to commit the heinous crime of
date rape. It leaves a victim with no memory of events that
occurred shortly after ingestion of the drug for up to two to eight
hours and is not detectable by standard urinalysis tests.
Flunitrazepam was classified in Schedule IVA because all other
benzodiazapines are in that schedule.
Number 055
CHAIRMAN TAYLOR asked what felony classification possession of the
drug would fall under. REPRESENTATIVE VEZEY answered the
controlled substance statutes vary according to how a violation
occurs. If a person was caught in possession of less than 25
tablets of flunitrazepam, the offense would be a class A
misdemeanor; if more than 25 tablets, a class C felony. If a
person attempts to distribute the drug to a minor, the offense
would be a class B felony. If the drug is used in the commission
of a crime, the offense would be classified as sexual assault in
the first degree, an unclassified felony.
Number 073
MR. GEORGE TAFT, director of the Scientific Crime Laboratory in
Anchorage, testified via teleconference and informed the committee
one case involving use of this drug has appeared in Alaska; that
case is now pending. The states of Texas and Florida have
published numerous articles about the various problems
flunitrazepam has created in those states.
CHAIRMAN TAYLOR asked Mr. Taft if this drug is used in any form by
the medical profession. MR. TAFT was not aware of any valid
medical use, and added it is not approved for use in the United
States.
REPRESENTATIVE VEZEY commented flunitrazepam is used in 64 to 80
countries as a medication for extreme sleep disorders. It is not
licensed for manufacture or distribution in the United States. The
manufacturer does not intend to get it licensed here because other
drugs are prescribed for sleep disorders. However, it is becoming
prevalent on the crime scene in the United States because it is
readily available in other countries.
Number 133
LAUREE HUGONIN , Executive Director of the Alaska Network on
Domestic Violence and Sexual Assault, testified in support of HB 69
and submitted written testimony to committee members.
SENATOR PARNELL asked Ms. Hugonin if she is familiar with cases
involving flunitrazepam other than the one case mentioned by Mr.
Taft. MS. HUGONIN said she is familiar with the one case and
suspects other unreported cases have occurred.
JAYNE ANDREEN , Director of the Council on Domestic Violence and
Sexual Assault, stated the Council's support of HB 69 for the
reasons stated by previous speakers.
SENATOR PARNELL moved SSHB 69 from committee with individual
recommendations. There being no objection, the motion carried.
SB 114 EMPLOYEES: POLITICAL CONTRIB & ACTIVITIES
LAURA CHASE , legislative staff to Senator Taylor, sponsor of SB
114, gave the following summary of the measure. SB 114 was
prepared in response to numerous constituent contacts regarding
automatic deductions from paychecks by employers for political
purposes. Once the deduction occurs, the employee loses control
over which candidates and issues the money is used to support or
oppose. SB 114 is written to protect the rights of workers to make
annual decisions regarding their involvement in the political
process. The reverse check-off process, as it is now known, was
recently banned by a Michigan statute, and upheld by the Sixth
Circuit Court of Appeals. SB 114 prohibits employers, or labor
organizations, from giving salary increases with the intent the
increase be donated in support or opposition of a candidate, issue,
recall petition, or for similar purposes. The bill prohibits
discrimination against an employee who fails to make a contribution
intended to influence a political race and requires a public record
be kept of all payroll deductions made for disbursal as political
contributions. SB 114 also requires annual written authorization
by the employee, prior to a deduction for political purposes and
requires that employees be informed, at the time of signing, of the
anti-discrimination provision that applies. SB 114 will enable
employees to continue their employment without feeling intimidated
about whether or not they are making contributions.
Number 220
SENATOR PEARCE asked what sort of information employee PACs must
keep and report under current law. CHAIRMAN TAYLOR stated it
depends primarily upon the amount of the contribution made by the
employee.
SENATOR ELLIS asked for elaboration on the paperwork requirements
proposed in SB 114. MS. CHASE replied the employer or labor
organization, making the withholding, must maintain a record of
that contribution for three years, and a record of employee
consent.
SENATOR ELLIS asked if the organizations would create their own
forms. CHAIRMAN TAYLOR referred to page 2, line 11, and said the
organization could, but APOC would most likely create a uniform
form.
Number 251
SENATOR ELLIS questioned whether the records would be maintained
for three years and then become public. MS. CHASE referred to page
2, paragraph (c), which requires the record be maintained and made
available to the public for at least three years after the
deduction was made.
SENATOR ELLIS asked how many organizations in Alaska would be
affected. MS. CHASE did not have that information but offered to
provide it at a later date.
SENATOR ELLIS noted some of the back-up material is from The Alexis
de Tocqueville Institution, pertains to teacher unions and compares
contributions of Republicans vs. Democrats, and plays up
partisanship of donations. He asked if that argument is part of
the justification for the bill. CHAIRMAN TAYLOR answered that
material demonstrates that the rank and file did not support the
decisions being made by their leadership, in the manner in which
their contributions were being used. The bill allows rank and
file members to make individual choices about how their funds are
utilized.
Number 284
SENATOR PARNELL noted SB 114 prohibits discrimination against an
officer or employee, in the terms or conditions as specified on
page 2, and asked whether any penalties or causative action would
be available to a complainant. CHAIRMAN TAYLOR answered the remedy
would be a suit for wrongful termination, because it becomes
discrimination per se, if one can establish that was the basis for
termination.
SENATOR PARNELL commented the damages would be lost wages.
CHAIRMAN TAYLOR agreed, and said he has not set up specific
legislative parameters. He thought a violation of that section
would subject one to liability under the Civil Rights Act.
SENATOR ELLIS asked whether Senator Taylor considered coordinating
the reporting requirements in SB 114 with the two-year election
cycle. CHAIRMAN TAYLOR replied the state does not account on a
two-year basis.
Number 307
BROOKE MILES , Alaska Public Offices Commission (APOC), provided an
overview of APOC's position on SB 114. Section 1(a)(1) is in
current law so the Commission has no objection to its inclusion.
APOC is concerned about Section 2, which prohibits discrimination,
because it takes APOC into an area of law outside of campaign
finance, and into the complex area of employment discrimination.
APOC believes that provision may be better placed under the
authority of a different statute, i.e., EEO or human rights.
Regarding the 12 month time limit for the employee's consent in
Section 1(2)(b), APOC would prefer the language on line 13 be
changed to "one calendar year" to be consistent with the campaign
disclosure statute. Regarding subsection (c) of Section 1(2),
APOC is concerned that requiring information to be made public will
have a chilling effect. Under current law, individuals or
contributors who donate more than $250 file a disclosure statement
independently of candidates and groups. People who donate $100 or
less are not disclosed by name, address, occupation, and employer
on the reports filed by labor groups, PACs, parties or candidates.
SB 114 would create a new area of public information; APOC is
concerned this requirement may discourage individuals from
participating in the political process. APOC believes it should
also keep a copy of the documents required to be kept by the
employer since APOC anticipates that enforcement of this
requirement will be through the complaint process. Last, APOC
would prefer the records be kept for four years rather than three,
to be consistent with other recordkeeping requirements under the
campaign finance disclosure law.
Number 395
SENATOR PARNELL asked if APOC would handle complaints because it
has jurisdiction over everything under AS 15.13. MS. MILES said
that is correct.
SENATOR PARNELL stated APOC typically fines people for violating
campaign finance laws and asked whether a complainant would be able
to collect back wages under SB 114. MS. MILES replied, under
campaign finance reform, a violation of this nature would be
subject to a fine of not more than $50 per day. If a complaint
filed with APOC is not acted on within 180 days, the complainant
could take court action.
SENATOR PARNELL asked if one would have to exhaust his/her
administrative remedy in front of APOC before going to court, or
whether one has a direct action to court. MS. MILES verified one
has a direct action to court only after 180 days has elapsed with
no action taken by APOC.
Number 420
CHAIRMAN TAYLOR asked if that is the rationale in the fiscal note
for funding; three additional complaints in election years, and two
additional complaints in non-election years. MS. MILES said that
is correct and is based on APOC's recent experience with the area
of law governing contributions in another's name. APOC estimated
three cases would be filed in an election year, of which it would
address two and one-half. In the non-election year, APOC would
complete the third case, and an additional two complaints filed
related to municipal or borough elections. Ms. Miles explained the
fiscal note includes funds for contractual work but not for new
positions.
SENATOR PARNELL asked, if SB 114 passes, whether a complainant
could go directly to court. MS. MILES repeated under the new
campaign finance disclosure law, a complainant cannot go directly
to court, but must first file a complaint with APOC.
SENATOR PARNELL asked if APOC has the authority to award back
wages. MS. MILES replied it does not. SENATOR PARNELL questioned
how appeals are treated by APOC. MS. MILES said the complainant
could appeal to Superior Court. SENATOR PARNELL asked if the
appeal would include a complete review of the facts. MS. MILES
answered that would depend on the nature of the appeal.
CHAIRMAN TAYLOR noted the intent was not to give APOC exclusive
jurisdiction over wrongful discharge suits because a peripheral
aspect of that suit required a form be filed with APOC, nor was it
to prevent a party from bringing a civil suit for 180 days. He
noted his desire to get a legal opinion on the ramifications of the
reference to AS 15.13 in SB 114. Chair Taylor asked why APOC
believes that copies of the written authorization forms should be
provided to the PAC receiving the contributions. MS. MILES replied
the PAC should be able to verify employee authorizations. CHAIRMAN
TAYLOR asked if APOC receives that information now. MS. MILES said
APOC does not, but she was not sure whether the PACs do.
CHAIRMAN TAYLOR asked whether a bargaining unit that signs up dues-
paying members for deductions in the contract itself, would have to
report a cumulative total of those deductions to APOC. MS. MILES
responded the group would have to report all of the contributors by
name, address, etc., who contribute more than $100.
Number 487
DON WANIE , Director of the Division of Finance in the Department o
Administration, made the following comments on SB 114. About
10,000 employees are covered under collective bargaining agreements
in the state employee workforce. Through the state payroll system,
dues deductions are processed for those 10,000 employees. A
portion of the dues deductions is used for political purposes and
some unions also have PACS for which deductions are allowed.
Because a portion of the dues deductions may be taken for political
purposes, the Division of Finance would be subject to the annual
renewal requirement and to file 10,000 authorization forms in
employees' records. AS 39.25.080 specifically sets out what public
employee information is public information. Dues deductions are
not included in that statute. Placing those deductions in statute
will set a precedent and open the way for disclosure of much less
desirable information, such as garnishments or levies. He added
the division believes any other public employer in the state, such
as municipalities and private employers with unionized employees,
will be subject to the same reporting requirement. SB 114 will
burden employers with an additional paper-generating process.
Number 534
CHAIRMAN TAYLOR stated the paperwork required by SB 114 is a
fraction of the paperwork sent out annually to all employees for
the retirement program.
MR. WANIE asked whether the authorization forms would be renewed
each year on the employee's hire date. CHAIRMAN TAYLOR noted APOC
requested the paperwork be renewed on a calendar year basis. MR.
WANIE agreed the calendar year time frame would be more manageable.
CHAIRMAN TAYLOR moved to change the word "three" to "four" on page
2, line 15, to accommodate APOC's request. There being no
objection, Amendment 1 was adopted.
CHAIRMAN TAYLOR moved to amend lines 13 and 14 on page 2 to read,
"The written request is valid for no more than one calendar year
from the date of signing by the employee." There being no
objection, Amendment 2 was adopted.
SENATOR PARNELL requested the committee get further information on
what rights of action complainants would have, and whether SB 114
should be under the jurisdiction of Title 15. CHAIRMAN TAYLOR
stated he would hold the bill until a legal opinion on those
questions is prepared. He asked for further suggestions from the
departments on how to implement SB 114 for less cost.
CHAIRMAN TAYLOR announced SB 114 would be held in committee until
the following week.
SJR 10 ELECTION OF ATTORNEY GENERAL
TUCKERMAN BABCOCK , staff to Senator Lyda Green, prime sponsor of
SJR 10, gave the following testimony. The committee has heard a
heartfelt argument against electing an attorney general. The basic
theory, addressed by Judge Stewart at a previous hearing, was that
the idea of the branches of government is vital to the American
republican form of government, and is not under attack by SJR 10.
No one questions the need to have an energetic executive. The
quote from The Federalist Paper No. 70 by Alexander Hamilton,
referenced by Judge Stewart, has little or nothing to do with the
question of an elected attorney general. Alexander Hamilton was
speaking to the idea of co-equal governors, such as the pro-
councils of Rome. At the time of independence, several states had
councils of equal governors. There is no specific criticism of
electing an attorney general in Federalist No. 70, nor in any of
the Federalist papers. With a single exception, the original 13
states today choose to elect their attorneys general.
TAPE 97-23, SIDE B
Number 580
Mr. Babcock continued. The federal government, designed at the
time of the framers of our constitutional order, has mutated. This
modern federal government would be unrecognizable for many of the
framers. The size, power, or intrusiveness of the federal
government today was not imagined by the framers in 1787. The
framers of the constitutional convention and James Madison, John
Jay, and Alexander Hamilton, who wrote the Federalist papers to
make the case for the adoption of the new Constitution, were
motivated by a need to redesign our initial federal government,
which had, up to that point, managed under the Articles of
Confederation. These Articles had proven to so enfeeble the
federal government, reform was essential.
Mr. Babcock explained the elected executive at the federal level
today is elected by a single ticket and authority is vested in a
single officer. That has not proven entirely workable without some
legislative amendments, the most significant being that of the
office of an independent prosecutor appointed by the attorney
general when there is a need to investigate the executive. We have
experienced the consequences of the lack of such independence in
Alaska's Department of Law. Two examples occurred during the
1980's when a Grand Jury recommended to the Legislature that they
consider impeachment of the Governor, and when the possibility of
corruption of some companies and officials doing business on the
North Slope went largely unaddressed by Alaska's Department of Law.
Mr. Babcock noted in Alaska, the Department of Law serves as the
only legal counsel to each department, commission, and the
Governor. It manages all criminal prosecutions, and advises and
holds final authority over all regulations adopted by any agency of
the Executive Branch. The attorney general's opinions, even if
contradictory to earlier opinions, are the definitive instructions
to state officials as to official actions. The attorney general is
obligated to enforce the law, which is policy adopted by the
legislative branch, but as an at-will political appointee of the
Governor, his/her loyalty is not to the law but to the political
dictates of the Governor. A key difference between the
organization of legal counsel in Alaska and the federal government
is that federal departments have their own attorneys for advice and
assistance. However, when it comes time for defense in court, or
prosecution, the Justice Department gets involved. This issue is
not addressed by SJR 10, but is left to be addressed through the
budgetary process in the Legislature.
According to Mr. Babcock, an elected attorney general in Alaska
would not be a co-equal with the Governor. The attorney general
would simply be an independent authority whose responsibility would
be to sue, defend, and prosecute on behalf of the State. The
attorney general would be responsible to the people in an election
for the choices made in that regard and the Governor would be
responsible for the faithful execution of the laws.
Mr. Babcock clarified that what Senator Green seeks to accomplish,
with SJR 10, is simply to charge a directly elected official with
the primary duty and sole responsibility to act in court on behalf
of the State. The attorney general would have that independent
authority. The function would be similar to the relationship of
police and prosecutors today, except the attorney general would be
responsible to the voters. As long as the Governor and attorney
general would have to run as a team, it would be in the best
interest of the attorney general to cooperate with the executive.
Regarding an example provided by Judge Stewart about Governor
Hickel's and Attorney General Cole's settlement of outstanding
lawsuits with certain oil companies, Mr. Babcock said Judge Stewart
feared that kind of unified policy objective would be frustrated by
a Governor and an independent attorney general. They did work well
together, however when a client wishes to settle, the client does
not need the permission of the attorney general to settle. The
Governor retains the policy call to make a settlement. The
Governor can be a client of the attorney general and the attorney
general's freedom consists of deciding whether to pursue the case,
but only if there is a question before him. The result is not
likely to be a dilution of their energy.
In response to Judge Stewart's comment that several former
governors liked being able to appoint their attorneys general, Mr.
Babcock said what would have been more revealing is the number of
elected attorneys general who have argued for appointment by
governors.
Mr. Babcock noted Judge Stewart was in error regarding the fact
that the only direction any state has taken has been to elect their
attorneys general. No state that has taken that step has chosen to
return to an appointment process. Forty-three states currently
elect their attorneys general. Judge Stewart was correct when he
said that citizens should not expect an elected attorney general to
suddenly start responding to requests from average citizens. The
attorney general will remain the chief attorney for the State of
Alaska, he just will no longer be an at-will employee of the
Governor.
Mr. Babcock discussed one theme touched on by Judge Stewart, and a
primary theme of Anchorage attorney Herb Berkowitz in a recent
article in The Voice of the Times, is that the opinions of the
attorney general can be challenged by any citizen in court. Mr.
Babcock thought that option may have existed when Alaska first
became a State, but now the Department of Law can devote limitless
resources defending or enforcing its opinion and most citizens
cannot afford to make their point in court. Direct election and
influence over who is the attorney general is a serious option.
The Governor will still be able to get legal opinions, just as the
Legislature does today, however from its legal counsel. When it
comes to committing the State of Alaska in court, there will be an
attorney general, directly elected and accountable to the people,
who make that decision. Mr. Berkowitz's objection to the
possibility of posturing by an elected attorney general is
legitimate, however sometimes what one person considers posturing
is actually responding to the desires of the people one is elected
to represent. SJR 10 makes the possibility of posturing to become
the next governor an unattractive option. Any attorney general
will have to wait through an entire election cycle before being
able to run for governor. Those opposed to the election of
Alaska's attorney general claim "if it isn't broke, don't fix it."
To a considerable degree, it is broken. The on-again, off-again
prosecution of cases involving federal-state responsibilities is a
prime example. The Attorney General's actions regarding Alaska
Public Utilities Commissioner Tim Cook is another example of a
system in need of repair, and can only be described as an
underhanded manner in which Governor Knowles avoided legislative
confirmation.
Of all the arguments against electing the attorney general, Mr.
Babcock said the worst is that voters are too ignorant to determine
the qualifications of their attorney general. If the voters can be
trusted to choose the Governor who appoints the attorney general,
they can certainly be trusted to choose the attorney general. If
SJR 10 is placed before the voters, the arguments will be played
out in the election and the voters will decide whether it is better
to maintain the current system, or whether an elected attorney
general will offer something better. An attorney general, directly
responsible to the voters, will focus on better protection from
crime for the innocent, prosecution for the accused, and more
appropriate punishment for those convicted. An attorney general
directly responsible to the voters will have a singular motivation
to move with vigor and commitment in challenging federal
encroachment on the rights and responsibilities of the State of
Alaska.
Mr. Babcock concluded by saying no one is suggesting electing
cabinet officers, or crippling the Governor's ability to exercise
executive powers. SJR 10 gives the people the choice to elect the
chief legal officer of the State of Alaska. The power to go to
court on behalf of the State is an immense power. After 38 years
of Statehood, it is time to give Alaskans a choice to decide
whether they want that power exercised by a political at-will
employee of the Governor, or by someone directly elected by the
people.
Number 476
SENATOR PARNELL referred to Mr. Babcock's comment about the
Governor being a client of the attorney general and asked in which
cases the attorney general would make the call. MR. BABCOCK
replied the attorney general would have the sole discretion to go
to court on behalf of the State. If the attorney general were in
court on behalf of the State and the case involved issues that
could be settled, the Governor, as the client, could settle those
cases.
SENATOR PARNELL asked if getting into court is the attorney
general's call, but whether to quit or go forward is the Governor's
call. MR. BABCOCK answered the Governor has the authority to
settle something like a tax case. If the issue is over the
constitutional relationship with the federal government, the
Governor would not have the ability to deny the attorney general
the ability to continue in court.
Number 463
SENATOR PARNELL presumed SJR 10 would greatly enhance the powers of
the attorney general in the courtroom. He asked Mr. Babcock to
provide a clear delineation of the current powers of the Governor
and attorney general. MR. BABCOCK replied his example was
specifically related to an issue that arises out of a statutory
case regarding tax payments, and in such a case the Governor can
negotiate to collect those taxes before ever going to court. When
it comes to whether or not the federal and state governments are
properly interpreting the relationship of state and federal law,
the Governor does not have the authority to stop the attorney
general from acting on behalf of the State.
CHAIRMAN TAYLOR stated the first paragraph of the committee
substitute addresses the Governor's authority, but the phrase
"brought in the name of the state" was deleted. Consequently, the
Governor could not bring action in the name of the State. MR.
BABCOCK said that is correct.
CHAIRMAN TAYLOR noted subparagraph (c) on the top of page 3
provides that the attorney general may bring necessary and proper
actions on behalf of the State. According to that provision, the
Governor may wish to bring a cause of action against the federal
government, but if the attorney general does not wish to do so, the
cause of action will not be brought. If the Governor wishes to
dismiss a cause of action brought by the attorney general against
the United States, and the attorney general does not wish to
dismiss the case, the cause of action would not be dismissed. MR.
BABCOCK agreed with Chair Taylor's assessment.
MR. BABCOCK noted the proposed committee substitute has not been
adopted (version O-LSO361\F).
Number 426
CHAIRMAN TAYLOR asked, in the 43 states that elect their attorneys
general, if the Governor has any role in what suits are brought or
dismissed, and if so, at what stage. He thought it unlikely
everything is left up to the attorneys general, including advice to
all departments. MR. BABCOCK said in some of the 43 states only
the attorney general can act on behalf of the State. CHAIRMAN
TAYLOR asked if, in those states, the attorney general controls the
hiring and firing, and the advice given by every attorney who works
under him/her for state agencies. MR. BABCOCK replied SJR 10 does
not address that aspect; that process would be a policy call for
the Legislature to make.
Number 406
SENATOR PEARCE asked Mr. Babcock to explain how he envisions the
process working. She asked how things would change if the attorney
general was elected and decided to renegotiate the Cleary
settlement, but the Governor and department heads continued to
refuse to comply with the settlement and the Legislature continued
to refuse to pay the fines. The attorney general could not hold
the Governor and Commissioners in contempt of court so would have
no hammer. MR. BABCOCK did not know, but said the attorney general
would have a more direct motivation to deal responsibly with the
Cleary settlement if elected but he doubted the attorney general
would have any more authority to have the Governor or department
heads fined or arrested than the court already has. SENATOR PEARCE
asked if the Governor could file an amicus brief for either side,
depending on whether he/she supports or opposes the attorney
general's position. MR. BABCOCK said the Governor could not do so
on behalf of the State. The relationship would be similar to that
between the Governor and Legislature in federal court. He added
the other option is to have multiple entities represent the State,
but then no one would represent the State.
SENATOR PEARCE expressed concern about taking action on this issue
because it is still unclear on how the new system would work.
Number 372
CHAIRMAN TAYLOR expressed concern about the "team" concept. He
questioned how a team would form up around the attorney general so
that each agency and department works in accordance with the
attorney general's legal opinions, while the commissioners are
directly appointed by the Governor. He questioned who would advise
the Governor and noted fiscal notes have been submitted that
include funds for a separate cadre of attorneys comparable to the
entire attorney general's office. He said although he understands
the sponsor's intent to have the Governor and attorney general run
together to provide a commonality of philosophy, if the two took
different positions on certain issues, they could spend their time
thwarting each other's efforts and embarrassing each other. He
noted Governor Hickel and Attorney General Cole worked well
together, but split over differences in their environmental
philosophies. Had Attorney General Cole been elected, many legal
hurdles may have been placed before the legislature regarding how
it spent Exxon Valdez settlement funds.
MR. BABCOCK commented many of the concerns raised by committee
members are based on the assumption that constant friction would
exist between the Governor and attorney general, yet 43 states
elect their attorneys general and function smoothly. This
constitutional amendment is structured so that the attorney general
would be clearly responsible for taking court action on behalf, or
in defense, of the state, but the amount of authority given to the
attorney general in advising departments, establishing regulations
for program implementation, or giving opinions to the Governor
would be up to the Legislature to decide.
Number 314
CHAIRMAN TAYLOR stated the committee's questions are based upon the
anxiety of not knowing how other systems work. MR. BABCOCK replied
there is no formula used by the 43 states. CHAIRMAN TAYLOR said he
understood every state probably structured their systems a little
bit differently, but the committee needs an outline of the basic
framework used by different states.
MR. BABCOCK remarked Senator Green did not intend to address the
mechanics of how the 43 other states actually operate because the
Legislature has the discretion to decide on the specifics. He
offered to provide an synopsis of other states' structures to
committee members. He emphasized the resolution is focussed on
whether or not to elect an attorney general.
CHAIRMAN TAYLOR repeated the committee needs at least generalized
answers as to where the state is heading with this legislation.
MR. BABCOCK noted the legislature will have four to six years to
prepare for the first election of an attorney general, and any
polling of the public has shown 70 to 75 percent of respondents in
support of the idea. He repeated there will be four to six years
to make the necessary statutory adjustments to accommodate this
change before an elected attorney general takes office.
Number 274
CHAIRMAN TAYLOR asked Mr. Babcock how he envisions the team concept
operating. MR. BABCOCK replied the attorney general would end up
on the ballot in the same way the lieutenant governor does, and
voters would vote for one set of executive officials. The only
connection between those candidates during the primary election
would be voluntary. Senator Green introduced this concept to
reduce potential friction on a partisan basis between the attorney
general and the Governor. It is not a system used by any of the 43
states that do elect their attorneys general. Some of those
candidates are nominated by Convention and then are locked into
running as a party in the general election. CHAIRMAN TAYLOR asked
if the race is partisan in each of those states. MR. BABCOCK
corrected himself and said the nomination aspect is purely
partisan, the election is not. When nominated, the registered
Republicans or Democrats in the Convention nominate the candidate,
and then the candidate runs independently in the election.
CHAIRMAN TAYLOR asked if the candidate runs as a Democrat or
Republican. MR. BABCOCK explained the candidate runs as one or the
other, but independent of the governor.
CHAIRMAN TAYLOR commented several Alaskan governors and their
attorneys general feuded; runing on the same ticket will not ensure
a harmonious relationship among those officials. He noted there is
a lot of concern at this time among committee members about the
impact of this resolution, and he plans to continue to hold
hearings on this issue until the committee feels more comfortable.
He thanked Mr. Babcock for his presentation.
SB 113 PERS FOR COURT SYSTEM ADMIN DIRECTOR
CHRIS CHRISTENSEN , General Counsel to the Judicial Branch, stated
the Supreme Court is opposed to passage of SB 113. It believes the
judicial retirement system is an essential tool for attracting and
retaining highly qualified personnel to serve as the administrative
director. He pointed out Alaska's placement of the administrative
director in the judicial retirement system is not unique; about
one-third of the states do so. The American Bar Association (ABA)
adopted standards relating to code organization. Those standards
provide that retirement benefits should not be less than that of a
judge at the intermediate court of appeals. The ABA set their
standard because it recognized administrative directors of state
court systems require specialized training. Alaska's standard
requires the retirement be tied to that of an appellate judge. In
Alaska this position was created by Article 4, Section 16 of the
Constitution. The Court has adopted Administrative Rule 1 to
implement this constitutional mandate which sets out the duties of
the administrative director and contains many specific technical
court duties. The administrative director heads a branch of
government rather than a department and serves the Supreme Court in
the same way the chief of staff serves the Governor. He acts as
legal advisor to the Court on non-adjudicatory matters, is
responsible for the massive volume of Court Rules, advises on the
procurement and personnel rules, and serves the same role the
attorney general serves to the Executive Branch. In addition, he
supervises the accounting department, which collects and accounts
for in excess of $7 million in fines and fees annually; distributes
restitution to victims; handles a large number of trust accounts;
and performs other duties handled by commissioners in the executive
branch. This position requires a much greater breadth of
experience and a different type of work than what is performed by
commissioners in the Executive Branch. The administrative director
is not a political position like a commissioner, and requires a
specific education and work history.
MR. CHRISTENSEN explained the ten-year vesting period required for
an administrative director is twice as long as the vesting period
for judges and any other PERS or TERS employees. The
administrative director must work in that specific position for
those ten years to become vested. The Legislature passed the ten
year vesting requirement in 1980 because the Supreme Court saw the
need for continuity and did not want to hire administrative
directors who worked for a few years to pad their resumes and then
headed to bigger court systems in other states. Prior to Mr.
Snowden's employment, there was a high turnover in administrative
directors that was damaging to the Court System. Only one
administrative director had served as long as five years. In the
eight years prior to Mr. Snowden's appointment, there were five or
six different directors, which created the perception that the job
was purely political and filled by people without regard to their
qualifications. A new Chief Justice professionalized the position
in 1973. The Court System is able to plan long term and believes
attracting and retaining a competent professional is necessary for
the judiciary, and that the judicial retirement system with the ten
year vestment requirement is necessary to accomplish that goal.
Number 108
CHAIRMAN TAYLOR asked what happens if an administrative director is
fired prior to the ten-year vesting period. MR. CHRISTENSEN
replied the director could cash in his/her retirement or convert it
to the PERS retirement system, but would not be eligible for
judicial retirement. CHAIRMAN TAYLOR affirmed unless the director
serves the full ten years, his/her retirement will be based on PERS
retirement. He questioned whether the director will "max" out in
the retirement system after 15 years, but cannot receive retirement
until age 60. MR. CHRISTENSEN said that was correct.
CHAIRMAN TAYLOR announced it was not his intent to move SB 113 at
this time.
SENATOR PEARCE commented this recommendation was made by
Legislative Budget and Audit. CHAIRMAN TAYLOR agreed and added the
measure would create a $25,000 savings.
CHAIRMAN TAYLOR repeated he had reservations about the legislation
at this time. He adjourned the meeting at 3:10 p.m.
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