Legislature(1997 - 1998)

03/19/1997 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                   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.                          
                                                                               

Document Name Date/Time Subjects