Legislature(1999 - 2000)

02/24/1999 01:37 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              SENATE JUDICIARY COMMITTEE                                                                                        
                  February 24, 1999                                                                                             
                      1:37 p.m.                                                                                                 
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Senator Robin Taylor, Chairman                                                                                                  
Senator Rick Halford, Vice-Chairman                                                                                             
Senator Dave Donley                                                                                                             
Senator John Torgerson                                                                                                          
Senator Johnny Ellis                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 5                                                                                        
"An Act relating to the crime of misprision of felony."                                                                         
                                                                                                                                
     -HEARD AND HELD                                                                                                            
                                                                                                                                
SENATE BILL NO. 69                                                                                                              
"An Act authorizing an advisory vote by the qualified voters of the                                                             
state on the question of the election of the attorney general; and                                                              
providing for an effective date."                                                                                               
                                                                                                                                
     -HEARD AND HELD                                                                                                            
                                                                                                                                
PREVIOUS SENATE COMMITTEE ACTION                                                                                                
                                                                                                                                
SB 5 - See Judiciary Committee minutes dated 2-3-99.                                                                            
                                                                                                                                
SB 69 - See State Affairs minutes dated 2/16/99.                                                                                
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
Mr. Blair McCune                                                                                                                
Deputy Director                                                                                                                 
Alaska Public Defender Agency                                                                                                   
900 West 5th #200                                                                                                               
Anchorage, AK 99501                                                                                                             
POSITION STATEMENT: Commented on SB 5                                                                                           
                                                                                                                                
Ms. Anne Carpeneti                                                                                                              
Assistant Attorney General                                                                                                      
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK 99801-0300                                                                                                           
POSITION STATEMENT: Commented on SB 5                                                                                           
                                                                                                                                
Senator Drue Pearce                                                                                                             
State Capitol                                                                                                                   
Juneau, AK 99801-1182                                                                                                           
POSITION STATEMENT: Presented SSSB 5                                                                                            
                                                                                                                                
Ms. Susan Fischetti                                                                                                             
10336 Stewart Drive                                                                                                             
Eagle River, AK 99577                                                                                                           
POSITION STATEMENT: Supported SB 69                                                                                             
                                                                                                                                
Mr. Ken Jacobus                                                                                                                 
425 G Street #920                                                                                                               
Anchorage, AK 99501                                                                                                             
POSITION STATEMENT: Opposed SB 69                                                                                               
                                                                                                                                
Mr. Jim Baldwin                                                                                                                 
Assistant Attorney General                                                                                                      
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK 99811-0300                                                                                                           
POSITION STATEMENT: Opposed SB 69                                                                                               
                                                                                                                                
Senator Jerry Ward                                                                                                              
State Capitol                                                                                                                   
Juneau, AK 99801-1182                                                                                                           
POSITION STATEMENT: Presented SB 69                                                                                             
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 99-12, SIDE A                                                                                                              
Number 001                                                                                                                      
                                                                                                                                
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to                                                                 
order at 1:37 and announced SB 5 would be the first order of                                                                    
business.                                                                                                                       
                  SB 5 - MISPRISION OF FELONY                                                                                   
                                                                                                                                
SENATOR DAVE DONLEY presented a work draft for SB 5 that                                                                        
establishes the crime of misprision and makes it applicable to                                                                  
unclassified felonies and felony crimes against a person. The bill                                                              
makes the crime of misprision a class A or B felony, depending on                                                               
the severity of the crime witnessed. This version adds an                                                                       
affirmative defense for witnesses who do not report a crime in a                                                                
timely manner out of fear they may be in danger if they do so, and                                                              
specifies that the state need not prove a person knew the class of                                                              
felony they witnessed in order to be prosecuted under this statute.                                                             
                                                                                                                                
Number 052                                                                                                                      
                                                                                                                                
SENATOR DONLEY moved the adoption of work draft M(Luckhaupt) as the                                                             
committee substitute. Without objection, the committee substitute                                                               
was adopted.                                                                                                                    
                                                                                                                                
MR. BLAIR MCCUNE, Deputy Director of the Alaska Public Defender                                                                 
Agency, said the bill conflicts with the privilege of self-                                                                     
incrimination, which gives any person who fears they may be charged                                                             
with an offense the right not to report the crime. SB 5 may result                                                              
in requiring a person who has nothing to do with an offense being                                                               
required to report it, while a person with some involvement in a                                                                
crime would not.                                                                                                                
                                                                                                                                
MR. MCCUNE proposed Alaska has other statutes, such as "hindering                                                               
prosecution," with which to prosecute a person who renders                                                                      
assistance to a criminal by providing transportation, money, or                                                                 
concealment.                                                                                                                    
                                                                                                                                
Number 100                                                                                                                      
                                                                                                                                
SENATOR PEARCE asked how Alaska would prosecute the Nevada case in                                                              
which a young man witnessed, but did not participate in a crime.                                                                
MR. MCCUNE replied in that case the young man provided                                                                          
transportation to the perpetrator.                                                                                              
                                                                                                                                
CHAIRMAN TAYLOR expressed concern that the intent of this bill is                                                               
to criminalize behavior similar to "abetting" a criminal, or being                                                              
an accessory to a crime, without actually participating in the                                                                  
crime.                                                                                                                          
                                                                                                                                
MR. MCCUNE explained to aid or abet a criminal involves complicity                                                              
in the crime and criminal intent. A person convicted as an                                                                      
accessory can be punished in the same manner as the principal                                                                   
perpetrator. CHAIRMAN TAYLOR asked if the hindering prosecution                                                                 
statute requires intent and MR. MCCUNE replied it requires intent                                                               
to hinder the apprehension or prosecution of a criminal. CHAIRMAN                                                               
TAYLOR commented that the level of intent in SB 5 is one level                                                                  
lower than that.                                                                                                                
                                                                                                                                
SENATOR PEARCE indicated her concern with situations of abused                                                                  
women and children where there is knowledge and implicit support of                                                             
the abuse by family and community members.  Part of her intent with                                                             
SB 5 is to see these cases prosecuted. She said she has no answer                                                               
to the self-incrimination question, but  this is a widespread                                                                   
problem within Alaska and, "I'm not convinced that we could use                                                                 
'hindering prosecution' for the sorts of cases that I am thinking                                                               
about . . . "                                                                                                                   
                                                                                                                                
SENATOR PEARCE remarked that it is unfair to allow children to be                                                               
abused because of  a protection from self-incrimination. "I don't                                                               
care what the Constitution says in this particular case - it                                                                    
doesn't work for me in this case."                                                                                              
                                                                                                                                
CHAIRMAN TAYLOR said authorities are often constrained by a pattern                                                             
within dysfunctional families that keeps abuse from being reported.                                                             
He asked, "Are we going to be imprisoning moms because they didn't                                                              
go forward earlier?" SENATOR PEARCE replied the language on lines                                                               
12-14 of page 1 was inserted to provide an affirmative defense for                                                              
most of those cases, but it does not cover cases in which both                                                                  
parents should be prosecuted. She said, "If either parent stands by                                                             
and watches while the other parent abuses the child, as far as I am                                                             
concerned, both parents should be prosecuted in some manner."                                                                   
                                                                                                                                
CHAIRMAN TAYLOR mentioned SENATOR HALFORD'S concern about personal                                                              
safety. SENATOR PEARCE said language had been inserted into the                                                                 
bill to deal with that "fear factor."                                                                                           
                                                                                                                                
Number 288                                                                                                                      
                                                                                                                                
SENATOR HALFORD explained there is another factor; the children                                                                 
themselves do not come forward for fear of losing one of their                                                                  
parents, despite how deviant that parent may be. He said he did not                                                             
want to force the loss of both parents or compel the family to go                                                               
to court, instead of getting counseling. SENATOR PEARCE did not                                                                 
dispute this point, but said, "We have to put some faith in the                                                                 
prosecutors' . . . ability to decide which cases should be                                                                      
prosecuted and which ones shouldn't." She said SB 5 would provide                                                               
a method to prosecute those who should be prosecuted. SENATOR                                                                   
HALFORD concluded this is a difficult area of discussion.                                                                       
                                                                                                                                
SENATOR PEARCE agreed this is a difficult subject, but emphasized                                                               
she appreciated having a full discussion on the bill. She proposed                                                              
that in some cases those who should be prosecuted are family                                                                    
members but not necessarily the parents of the abused child.                                                                    
                                                                                                                                
CHAIRMAN TAYLOR asked how the bill will affect counselors,                                                                      
preachers, police officers and school teachers; the bill has a wide                                                             
sweep. SENATOR HALFORD said the bill only exempts lawyers.                                                                      
                                                                                                                                
Number 365                                                                                                                      
                                                                                                                                
MS. ANNE CARPENETI, representing the criminal division of the                                                                   
Department of Law, thanked the committee for the work done on the                                                               
bill in response to the concerns of the Department.                                                                             
                                                                                                                                
MS. CARPENETI reported the bill is still too broad and requires                                                                 
victims of rape and domestic violence as well as spouses of child                                                               
abusers to report these crimes or be subject to a criminal                                                                      
violation. The bill forces parents to report spouses to the                                                                     
criminal justice system, rather than allowing them the choice to                                                                
pursue counseling or seek another solution. She suggested limiting                                                              
the offenses covered by SB 5 to murder, attempted murder,                                                                       
kidnaping, arson and maybe first-degree sexual abuse of a minor.                                                                
The nature of these crimes offset some of the concerns raised                                                                   
because these are the most serious crimes where victims are unable                                                              
to be heard.                                                                                                                    
                                                                                                                                
SENATOR TORGERSON asked how a victim of domestic violence or rape                                                               
could be prosecuted if the victim's testimony would be the evidence                                                             
of the crime. MS. CARPENETI said a person is required to report an                                                              
offense unless he or she is the perpetrator and therefore covered                                                               
by the right against self-incrimination. SENATOR HALFORD said                                                                   
parents who know their child is being abused are probably violating                                                             
present law but they are protected by the privilege against self-                                                               
incrimination. Consequently, "If they are the good parent, who                                                                  
didn't know and now finds out and goes to a psychological                                                                       
professional . . .  and takes their advice . . . you can't claim                                                                
self incrimination - so the self-incrimination only protects the                                                                
guilty; it doesn't protect the parent who is truly operating in the                                                             
best interests of the child."                                                                                                   
                                                                                                                                
SENATOR PEARCE testified the intent of SB 5 is not to compel a rape                                                             
victim to make a report, but to require a witness of such a crime                                                               
report it.                                                                                                                      
                                                                                                                                
SENATOR PEARCE suggested there has to be a way to get at recidivist                                                             
pedophiles and protect "the next child, or the next child or the                                                                
next child." She said it seems the committee is considering sexual                                                              
abuse of a child by a non-parent a worse crime than sexual abuse by                                                             
a parent. She does not think anyone subscribes to this view but                                                                 
said, "That is what happens if we don't somehow deal with the                                                                   
parent - they are just as culpable . . . "                                                                                      
                                                                                                                                
Number 479                                                                                                                      
                                                                                                                                
SENATOR HALFORD cited a real life example to illustrate his point                                                               
that, "it is very, very difficult to make a parent take an action                                                               
against their child for the protection of the future."                                                                          
                                                                                                                                
SENATOR DONLEY asked if deleting the portion  of SB 5 relating to                                                               
class B felonies would give the bill a better focus. ANNE CARPENETI                                                             
said yes.                                                                                                                       
                                                                                                                                
Number 525                                                                                                                      
                                                                                                                                
SENATOR DONLEY moved Amendment #1: insert the phrase, "other than                                                               
a victim" on page 1, line 5 after the word "person." After some                                                                 
discussion, he modified his motion to insert the phrase after the                                                               
word "person" on line 4, page 1. Without objection, the amendment                                                               
was adopted.                                                                                                                    
                                                                                                                                
SENATOR DONLEY moved Amendment #2: delete from page 1, line 6, and                                                              
page 1, line 8, and page 2, line 7 "or class B felony," to focus                                                                
the bill on very serious crimes.                                                                                                
                                                                                                                                
Number 557                                                                                                                      
                                                                                                                                
SENATOR HALFORD suggested that the bill should specify the exact                                                                
crimes covered rather than use the statutory reference. He asked                                                                
how many crimes would fall under the scope of the bill. After                                                                   
discussion, the consensus of the sponsor, the Department and the                                                                
committee was that the list of crimes would not be too long to                                                                  
specifically name them in the text of the bill. SENATOR PEARCE                                                                  
stated that her concerns would be covered if the bill encompassed                                                               
unclassified felonies.                                                                                                          
                                                                                                                                
TAPE 99-12, SIDE B                                                                                                              
Number 592                                                                                                                      
                                                                                                                                
SENATOR DONLEY withdrew Amendment #2. He suggested the committee                                                                
consider a conceptual amendment to limit the bill to unclassified                                                               
felonies and first-degree arson, and list the offenses specifically                                                             
in the text of the bill. SENATOR HALFORD moved SENATOR DONLEY's                                                                 
idea as Amendment #3. Without objection, Amendment #3 was adopted.                                                              
                                                                                                                                
SENATOR ELLIS asked how the new requirement for "timely" reporting                                                              
in the bill would compare with the previous requirement for                                                                     
immediate  reporting. SENATOR DONLEY observed that the requirement                                                              
for timely reporting allows for a more flexible application. MS.                                                                
CARPENETI agreed.                                                                                                               
                                                                                                                                
Number 553                                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR reflected that the crime created in this bill is                                                                
difficult to differentiate from conspiracy and accessory. He said                                                               
the committee will work on another draft of SB 5.                                                                               
                                                                                                                                
CHAIRMAN TAYLOR announced SB 69 was up for consideration.                                                                       
               SB  69-ADVISORY VOTE ON ELECTED AG                                                                               
                                                                                                                                
SENATOR JERRY WARD, prime sponsor of SB 69, explained the bill                                                                  
allows a vote of the people of Alaska to decide whether the                                                                     
attorney general (AG) should be an elected position.                                                                            
                                                                                                                                
SENATOR WARD said the attorney general now works at the pleasure of                                                             
the Governor, not for the people.                                                                                               
                                                                                                                                
SENATOR WARD stated that the current Attorney General made a                                                                    
political decision about the Babbitt subsistence case. He                                                                       
commented, "I don't mind those Governors having Bruce Bothelo as                                                                
their Attorney General - that's fine, but I think the people should                                                             
have an attorney general that represents them and the Constitution                                                              
- not for political consideration."                                                                                             
                                                                                                                                
SENATOR WARD testified that he has done research and determined                                                                 
that all but five states have an elected attorney general.                                                                      
                                                                                                                                
SENATOR HALFORD said he did not think SENATOR WARD'S objective                                                                  
could be accomplished by an amendment. He asked, "Why don't we do                                                               
this by resolution and forget about the advisory vote - let the                                                                 
people vote on the issue." SENATOR WARD agreed it could be done                                                                 
that way, but he prefers for the debate to happen first. CHAIRMAN                                                               
TAYLOR asked if SENATOR WARD would be willing to sponsor a                                                                      
committee substitute that followed SENATOR HALFORD'S suggestion. He                                                             
said he would not be opposed to that. SENATOR HALFORD commented                                                                 
that a bill cannot be changed into a resolution in committee.                                                                   
                                                                                                                                
Number 484                                                                                                                      
                                                                                                                                
SENATOR WARD reported there is a bill to amend the Constitution                                                                 
"coming in from the other side." He then said, "I do want to have                                                               
the debate; I can't wait 'til the current Attorney General debates                                                              
with our current Judiciary Chairman on whether or not this should                                                               
pass in a public arena - I think it's going to be quite                                                                         
interesting."                                                                                                                   
                                                                                                                                
SENATOR DONLEY suggested the bill contain a contingent effective                                                                
date so it could serve as a fall back in case a resolution does not                                                             
pass.                                                                                                                           
                                                                                                                                
SENATOR HALFORD noted the vote required to override a veto is the                                                               
same vote required to approve a resolution. SENATOR WARD agreed and                                                             
said, "I thought there were four extra votes for this . . . We are                                                              
two separate bodies but I have counted and I feel very good about                                                               
the people being able to debate this in an election process - a lot                                                             
of people looking forward to that."                                                                                             
                                                                                                                                
MS. SUSAN FISCHETTI of Eagle River testified in support of SB 69.                                                               
MS. FISCHETTI said it is important to bring Alaska into line with                                                               
other states. As the sponsor of "the English initiative," she                                                                   
believes an advisory vote would be fair and popular and ensure the                                                              
attorney general is more accountable to the people of Alaska.                                                                   
                                                                                                                                
Number 448                                                                                                                      
                                                                                                                                
MR. KEN JACOBUS opposed SB 69 but supports the idea of an elected                                                               
attorney general as another check and balance within the executive                                                              
branch. An elected position would give people another avenue of                                                                 
direct input in government, encourage participation in the                                                                      
political process, and result in decisions involving more                                                                       
compromise. MR. JACOBUS agreed with SENATOR HALFORD and encouraged                                                              
the committee, "If you have the votes to put a constitutional                                                                   
amendment on the ballot, just put the constitutional amendment on                                                               
the ballot and let the people debate it once rather than debating                                                               
it twice."                                                                                                                      
                                                                                                                                
Number 423                                                                                                                      
                                                                                                                                
MR. JIM BALDWIN, representing the Office of the Attorney General,                                                               
stated the Administration does not support the bill.                                                                            
                                                                                                                                
MR. BALDWIN did not disagree to debate the issue, but said the                                                                  
issue needs to be examined "head on" to see if it is in fact a good                                                             
idea. According to MR. BALDWIN, the framers of Alaska's                                                                         
Constitution opposed the proliferation of elected offices; and                                                                  
believed the governor should be responsible for decision-making,                                                                
not "lay off the blame for certain decisions on his subordinates .                                                              
. . that's what we have now."                                                                                                   
                                                                                                                                
CHAIRMAN TAYLOR asked how a person becomes attorney general and MR.                                                             
BALDWIN said they are appointed by the governor and confirmed by                                                                
the legislature. CHAIRMAN TAYLOR replied that is why we have not                                                                
had an attorney general for four years. "He has never stood for                                                                 
confirmation . . .  and he was required to do so . . . in direct                                                                
violation, in my opinion, of the Constitution of this state. Now                                                                
who do we in the Legislature turn to to enforce the Constitution of                                                             
this state?"  MR. BALDWIN argued that this Attorney General was                                                                 
confirmed by the Legislature.                                                                                                   
                                                                                                                                
SENATOR HALFORD informed MR. BALDWIN he would like a written                                                                    
opinion on whether the Administration believes the election of the                                                              
attorney general constitutes an amendment or a revision to the                                                                  
constitution. MR. BALDWIN replied he would convey that request.                                                                 
                                                                                                                                
Number 352                                                                                                                      
                                                                                                                                
MR. BALDWIN asserted the approach in SB 69 is not a good one. He                                                                
speculated that if the 45 governors with elected attorneys general                                                              
were polled, they would unanimously prefer appointed attorneys                                                                  
general. MR. BALDWIN urged the committee to consider the problems                                                               
that occur when there is a political split between the attorney                                                                 
general and the governor/lieutenant governor.                                                                                   
                                                                                                                                
CHAIRMAN TAYLOR explained the Judiciary Committee is charged with                                                               
reviewing proposed legislation for constitutional impacts and                                                                   
problems. He stated he has never before supported this measure, but                                                             
the forefathers of Alaska "never would have believed we could have                                                              
elected a Governor so corrupt that he would abuse the Constitution                                                              
for his own political purposes."                                                                                                
                                                                                                                                
CHAIRMAN TAYLOR listed the Babbitt case, the Alaska Public Safety                                                               
Information Network "scandal" and the lack of any state                                                                         
prosecutions in the World Plus ponzi scheme as examples where                                                                   
"politics has been allowed to prevail over our Constitution to the                                                              
detriment of our citizens, by this Attorney General. He wanted the                                                              
appointment so much that he was willing to prostitute the law and                                                               
the Constitution in the way he has carried it out."                                                                             
                                                                                                                                
CHAIRMAN TAYLOR stated this is the second Administration under                                                                  
which Attorney General Bothelo has refused to stand for                                                                         
confirmation.                                                                                                                   
                                                                                                                                
CHAIRMAN TAYLOR said the Legislature does not have standing in                                                                  
court to protect our state's rights. He concluded, "If, for any                                                                 
political reason, any political benefit, the decision is made on                                                                
the third floor that our Constitution is to be disregarded, that                                                                
our state is not to be protected . . . they (statehood rights) will                                                             
not be protected."                                                                                                              
                                                                                                                                
Number 268                                                                                                                      
                                                                                                                                
SENATOR DONLEY asked if any states have changed from an elected                                                                 
attorney general to an appointed one, or vice-versa. MR. BALDWIN                                                                
offered to research the question and let the committee know.                                                                    
                                                                                                                                
SENATOR DONLEY suggested the committee should be more concerned                                                                 
with what the people, rather than the Governor, feel is good for                                                                
the government. MR. BALDWIN said presumably the Governor, as a                                                                  
statewide elected official, knows the will of the public. SENATOR                                                               
DONLEY said it seems the best way to find out is to take a vote.                                                                
MR. BALDWIN replied taking a vote will determine what the people                                                                
who turn out to vote want, not what all the people of the state                                                                 
want. SENATOR HALFORD asked MR. BALDWIN if he advocates returning                                                               
to a more limited franchise.                                                                                                    
                                                                                                                                
Number 204                                                                                                                      
                                                                                                                                
SENATOR DONLEY remarked it is incredibly inconsistent of this                                                                   
Administration to oppose a vote on a straightforward proposition                                                                
like this and to "continue the mantra of 'let the people vote' when                                                             
it comes to a very complex issue like subsistence." MR. BALDWIN                                                                 
argued this is not a simple proposal that can be conveyed to voters                                                             
via a short ballot proposition. MR. BALDWIN concluded he does not                                                               
want to debate whether the people should vote on electing an                                                                    
attorney general, but rather that the election of an  attorney                                                                  
general is a bad idea.                                                                                                          
                                                                                                                                
Number 128                                                                                                                      
                                                                                                                                
MR. AV GROSS, former Attorney General for Alaska, expressed an                                                                  
obligation to the office to testify on this issue.                                                                              
                                                                                                                                
MR. GROSS agreed that most states have elected attorneys general,                                                               
but said, unlike Alaska's AG, elected AG's do not prosecute crimes,                                                             
control the criminal mechanism, or argue cases for departments of                                                               
state. They have limited powers or, basically, no power at all.                                                                 
                                                                                                                                
MR. GROSS proposed appointed AG's are lawyers who have an interest                                                              
in politics and elected AG's are politicians who are lawyers.                                                                   
                                                                                                                                
MR. GROSS said the election of an attorney general results in an                                                                
adversarial relationship between the governor and the attorney                                                                  
general because the attorney general is likely to have political                                                                
aspirations and the governor stands in the way. The AG often makes                                                              
trouble for the governor and initiates lawsuits against him or her.                                                             
MR. GROSS  suggested  such an adversarial situation does not work;                                                              
if the governor is the sole person responsible to the people for                                                                
how the executive branch of government works, the attorney general                                                              
should be responsible for his or her functions as are other                                                                     
department heads.                                                                                                               
                                                                                                                                
MR. GROSS emphasized the attorney general in Alaska can accomplish                                                              
much more than AG's in other states, such as introducing uniform                                                                
sentencing requirements. The AG runs a "huge law firm" and most of                                                              
his functions have nothing to do with politics. Occasionally, a                                                                 
very political issue will come up and the AG will be called to                                                                  
advise the governor on the issue. As with any other client, noted                                                               
MR. GROSS, the AG does the governor no favor to tell anything less                                                              
than the whole truth. "If you advise the governor badly, it comes                                                               
back to bite you in the worst way."                                                                                             
                                                                                                                                
TAPE 99-13, SIDE A                                                                                                              
Number 001                                                                                                                      
                                                                                                                                
MR. GROSS proposed if the AG were elected, the governor would take                                                              
no responsibility for crime or the legal actions of departments of                                                              
state, "Which, right now, you can stick 'em with." This is what the                                                             
framers wanted.                                                                                                                 
                                                                                                                                
MR. GROSS conceded there have been politically motivated AG's, just                                                             
as there have been crooked legislators and bad commissioners. He                                                                
maintained elected attorneys general would be as bad as appointed                                                               
AGs; they would be selected more on their ability to get a majority                                                             
vote than their reputation as attorneys.                                                                                        
                                                                                                                                
Number 044                                                                                                                      
                                                                                                                                
MR. GROSS said it is no secret that people will want to elect the                                                               
attorney general. He recalled how he had opposed applying the Open                                                              
Meetings Act to the Legislature because he knew it would pass by an                                                             
overwhelming vote, but he also knew; "The legislature needed,                                                                   
sometimes, a private debate . . . moments of quiet discussion away                                                              
from the cameras . . . it's not politically correct but it is                                                                   
true." He claimed the issues are similar.                                                                                       
                                                                                                                                
MR. GROSS said the attorney general acts like another commissioner,                                                             
and there is no more reason to elect the AG than there is to elect                                                              
the Commissioner of Natural Resources.                                                                                          
                                                                                                                                
CHAIRMAN TAYLOR argued that the AG is not accountable to the                                                                    
Legislature or the people and therefore the only recourse left to                                                               
the Legislature is impeachment.                                                                                                 
                                                                                                                                
Number 087                                                                                                                      
                                                                                                                                
MR. GROSS commented that the legislature can file suit against a                                                                
decision with which it disagrees, which in fact, happened while he                                                              
was attorney general. MR. GROSS conceded that past attorneys                                                                    
general have made stupid mistakes, but claimed they are only                                                                    
lawyers who enjoy public service. He illustrated an example of "the                                                             
most political instance in which the attorney general was ever                                                                  
involved." At the end of this case, it was shown that the attorney                                                              
general's office had worked in a non-political fashion. "It was a                                                               
credit to the Department of Law." MR. GROSS said he hoped the                                                                   
Legislature wouldn't "let your irritation over a particular                                                                     
decision or a particular action by one person color your thinking                                                               
so much you are willing to literally change the basic structure of                                                              
government."                                                                                                                    
                                                                                                                                
Number 153                                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR stated he has the utmost respect for MR. GROSS, and                                                             
he has defended his position (for an appointed attorney general)                                                                
for the past 13 years, but he can no longer do so due to the three                                                              
examples he cited, which were "totally motivated by politics." MR.                                                              
GROSS said he understood CHAIRMAN TAYLOR'S anger, but said making                                                               
the attorney general run for office won't make it a less political                                                              
office. CHAIRMAN TAYLOR replied he knows no other way to  prevent                                                               
"that type of abuse from occurring in the future." MR. GROSS                                                                    
responded that the governor would fire an attorney general who made                                                             
a decision contrary to the popular will. CHAIRMAN TAYLOR replied,                                                               
"I've not seen any concern about ethical standards, or anything                                                                 
else, so far, up there . . ."                                                                                                   
                                                                                                                                
MR. GROSS stated "It is not a good idea to change the basic nature                                                              
of the system because you are angry or upset about a particular                                                                 
action by someone who holds the office  . . . change the person,                                                                
don't change the office." CHAIRMAN TAYLOR replied, "If there were                                                               
a way to do that, I would  . . . unfortunately, there is not."                                                                  
                                                                                                                                
MR. GROSS concluded his testimony by saying there have been bad                                                                 
people who have served as attorneys general and he thinks the                                                                   
people who serve will be worse if they are forced to seek the                                                                   
office through an election.                                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR thanked MR. GROSS for his testimony. With no                                                                    
further testimony, CHAIRMAN TAYLOR adjourned the meeting at 3:27                                                                
p.m.                                                                                                                            

Document Name Date/Time Subjects