Legislature(2007 - 2008)CAPITOL 106
04/12/2007 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB59 | |
| HJR6 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 59 | TELECONFERENCED | |
| += | HJR 6 | TELECONFERENCED | |
| + | TELECONFERENCED |
HJR 6-CONST. AM: ELECTED ATTORNEY GENERAL 8:50:16 AM CHAIR LYNN announced that the last order of business was HOUSE JOINT RESOLUTION NO. 6, Proposing amendments to the Constitution of the State of Alaska relating to the office of attorney general. The committee took an at-ease from 8:50:28 AM to 8:52:43 AM. 8:53:01 AM REPRESENTATIVE HARRY CRAWFORD, Alaska State Legislature, as prime sponsor of HJR 6, offered his understanding that there are 45 states that don't have appointed attorney generals. He stated his belief that when Alaska first became a state, it thought it would be continually battling the federal government, which is why the state chose in its constitution to have an appointed attorney general. He said Alaska has grown up since then and it is time to correct what he said he believes was a flaw in the original constitution. He said he has a problem with the words in the constitution that say the attorney general "shall serve at the pleasure of the governor." He stated his belief that the AG should be able to ferret out wrongdoing wherever he/she sees it, without the threat of being fired. He recognized the AG as the top lawyer for the people of Alaska, but said currently the AG is serving as the top lawyer for the governor. 8:55:46 AM CHAIR LYNN pointed out that the governor has the power not only to fire the AG, but also to keep him/her. REPRESENTATIVE CRAWFORD agreed, but reiterated that he believes that is wrong to have the AG serving completely at the pleasure of the governor. CHAIR LYNN noted that not only is a governor elected, but an entire administration; typically that entire administration is of the same or nearly the same political party as the governor. He questioned whether or not the AG should belong to the same party as the governor. 8:57:28 AM REPRESENTATIVE CRAWFORD recalled that during one of the first interviews of the current AG, he was asked whether he served the governor or the people, and the AG had a difficult time answering the question. CHAIR LYNN suggested that there may not be a good answer. REPRESENTATIVE CRAWFORD emphasized that although the AG can be a legal advisor for both the governor and the public, it is a mistake to say that he/she works for the governor and not the people. In response to Chair Lynn's comment about political affiliation, he credited Representative Johnson with having suggested there be an open primary for AGs, followed by an election for the AG, the same way as the public elects the lieutenant governor - as "part of a slate." Representative Crawford said he likes that idea; it would mean the top three offices would be elected as a group. He said this would mean that although the AG may be allied with the governor, he/she would not walk in to work one day and be fired by the governor. 9:00:13 AM CHAIR LYNN asked how there would be any certainty that an elected AG would not be giving answers to advance his/her political future. REPRESENTATIVE CRAWFORD said he believes that he should be able to go to the attorney general and ask for advice, no matter what the AG's political affiliation is. CHAIR LYNN asked Representative Crawford what he would do if he was governor and his AG wanted to legalize casino gambling in the state. REPRESENTATIVE CRAWFORD said he would try to work the issue out one way or the other. He stated his belief in direct democracy and trusting the judgment of the people; therefore, if he were governor and the public elected an AG who ran on a pro-gambling platform, he would have to live with that. In response to a question from Chair Lynn, he concurred that Alaska has a representative form of democracy, but he stated his belief in the direct election of state officials. 9:04:00 AM REPRESENTATIVE ROSES offered his understanding that the AG takes an oath of office to uphold the Constitution of the State of Alaska and protect the rights of the citizens of the state; he/she doesn't take an oath to protect the rights of the governor. He said he knows there can be conflict, but he does not see any difference "in terms of the appointment." He directed attention to the sponsor statement, and read: "Serving at the pleasure of the governor exposes the attorney general to a conflict between his or her loyalty to the head of the executive branch and his or her duty to represent and protect the people of Alaska." The sponsor statement goes on to say that that is an ethical dilemma. Representative Roses noted that he was appointed by a former governor to sit on the Alaska Retirement Management (ARM) Board, and he said his responsibility on that board was to do that which would benefit the ARM Board, not that which would benefit the governor. He questioned how far Representative Crawford's idea would go. For example, would every board member and every person who serves as commissioner be elected by the people? He stated, "At some point in time we must believe in the integrity of the individuals that are serving and the oath of office that they take." He said getting elected does not make a person more or less ethical. 9:07:02 AM REPRESENTATIVE CRAWFORD noted that out of the scenario that Representative Roses described, the only person who has the ability to investigate or charge the governor with a crime is the attorney general, and he/she can be fired by the person being investigated. REPRESENTATIVE ROSES asked if the legislature has the authority to hire its own prosecutor in the event that it determines there has been wrong-doing on behalf of the governor and no proper investigation by the attorney general is being conducted. REPRESENTATIVE CRAWFORD said during the last administration, the AG resigned "under pressure"; however, he offered his understanding that the legislature did not have the ability to hire a special prosecutor. REPRESENTATIVE ROSES concluded that the legislature currently has the ability to be the checks and balances system. REPRESENTATIVE CRAWFORD said private citizens have the ability to file charges. He added, "We didn't do that as a legislature or as a legislator." REPRESENTATIVE ROSES said, "If we didn't have a [checks and balances] system in place, and it was totally up to that individual and that was the only person that had the ability to do it, I would be with you 100 percent." He said he does not take changes to the constitution lightly and he is reluctant to agree to changing it without thinking that there were no other options. 9:10:27 AM REPRESENTATIVE DOLL said she gets nervous with the idea of the public electing the attorney general. Although it would mean a vote of the majority, she said oftentimes the majority moves like a wave in the ocean. She emphasized her reliance on the law of the constitution. She said she would like to see [an attorney general] who is appointed by the supreme court, so that he/she is beholden to neither the governor nor the public. 9:11:25 AM REPRESENTATIVE GRUENBERG said attorneys in Alaska, including the attorney general, are subject to the code of professional responsibility which comprises several rules of professional conduct. Representative Gruenberg cited AS 44.23.010, which read: Sec. 44.23.010. Attorney general. The principal executive officer of the Department of Law is the attorney general. REPRESENTATIVE GRUENBERG next cited 44.23.020(a), which read as follows: (a) The attorney general is the legal advisor of the governor and other state officers. REPRESENTATIVE GRUENBERG noted that AS 44.23.020(b) lists the functions of the attorney general. He continued: But there are cases that say that the powers and duties of the attorney general are those described at common law, which means that the AG is the chief legal officer for the state as an organization. So, really, at the common law and in this state, the client of the AG and all of the members of the Department of Law is the state. ... They talk in terms of this particular rule as individual people in state government are not his clients or her clients, but they are constituents of the client, which is the state as a whole. REPRESENTATIVE GRUENBERG referred back to the rules of professional conduct, specifically Rule 1.13 - "Organization as Client." He read "(a)" as follows: Except as herein after provided, a lawyer employed or retained by an organization ... represents the organization acting through its duly authorized constituents. REPRESENTATIVE GRUENBERG next read from the commentary portion of the rule, which read as follows: Clarifying the Lawyer's Role There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged based on the facts of the case. 9:15:43 AM REPRESENTATIVE GRUENBERG said the federal government has created "the Office of the White House Council." He recommended that the legislature look at AS 44.23 and consider establishing, through statute, some type of governor's council that could be employed in the event of a conflict of interest. He emphasized the importance of having such a council. CHAIR LYNN said there is a problem that needs to be addressed, but said the debate is whether or not electing an AG would solve the problem. 9:17:23 AM REPRESENTATIVE CRAWFORD said he understands everything Representative Gruenberg just said about who the client is, and it may address the issue of conflict of interest; however, he said that "still doesn't remove the problem in that the governor can walk in and fire the attorney general for whatever ... [reason]." He said that is problematic. 9:18:44 AM REPRESENTATIVE JOHNSON said he hates to develop policies based on situations. He said a situation comes to mind where the AG had an opportunity to advance a law suit, thought the state had a good chance of winning, was told by "his boss" that the lawsuit would not be advanced, and went on record to say [the lawsuit] was removed for political reasons. He surmised that if there had been an elected AG in office at that time, the issue would have been addressed. He said it was an issue that still exists and that the state will be facing for a long time to come. He said he has no interest in setting up an adversarial situation; however, he wonders how many instances there have been when the AG has said, "We can win this," and the governor has said no. 9:21:44 AM REPRESENTATIVE CRAWFORD said it was obvious that the AG was following orders, and that is something that has happened over the years. He clarified that he does not want to cast dispersions upon all attorneys general. He restated that he does not think the attorney general should have to be "part of the team," because he's "different from other department heads." He reiterated that the AG is a law enforcement officer; the top lawyer for the people of Alaska. He said both the United States Constitution and the Constitution of the State of Alaska have been amended and will be again. He said it is difficult to amend the constitution; it takes a two-thirds vote of both bodies, plus a vote of the people. 9:24:33 AM REPRESENTATIVE ROSES said the focus thus far has been on what happens when the AG disagrees with the governor, with the assumption that the AG was right, the governor was wrong, and there was no recourse. He asked what happens in a situation when the governor is right or where there has been a misuse of office, and the AG was elected. The only recourse at that point, he surmised, would be to recall the elected AG, which he said concerns him. He posited that one advantage of having an appointed AG is that the governor can dismiss him/her for misconduct in one day instead of - in the case of an elected AG - having to wait until the next election. He suggested that to address any concerns that an AG could be dismissed unjustly, the legislature has the power to put some checks and balances in place - for example, to have an appeal or review process. 9:26:14 AM REPRESENTATIVE CRAWFORD suggested impeachment as another option. He indicated that he is open to other suggestions for making the AG independent of the governor. He expressed appreciation for Representative Johnson's idea to elect attorneys general "as a slate." REPRESENTATIVE ROSES said he thinks electing attorneys general as a slate would give the impression that "they're part of the same group and that they're going to support each other." He said that would not necessarily prevent conflict or the perception of "serving at the pleasure of [the governor]." He said he is not in favor of the election process. 9:28:14 AM REPRESENTATIVE GRUENBERG directed attention to an article from Alaska Scrapbook, [included in the committee packet]. He said the framers of the Constitution of the State of Alaska deliberately decided to change from the territory's practice of electing an AG to having one appointed by the governor. He offered an historical example of another branch of government attempting to control the attorney general, and he relayed that the Alaska Supreme Court says that is not allowable. He explained that the decision whether to prosecute or not to prosecute is an executive decision, and it is a violation of the constitutional separation of powers for a different branch to make that decision. He said he does not think there would be anything wrong with the idea of the legislature passing a law requiring the executive branch to pursue an appeal. He said the decision to appeal or not to appeal is an "internal question." 9:32:32 AM REPRESENTATIVE GRUENBERG said the opposite situation can occur just as easily. He explained that an attorney general who was elected may do something for political purposes that does not serve the best interest of the state. He commented on the number of elected officials that would be serving if the AG was also elected. 9:34:01 AM REPRESENTATIVE COGHILL stated that the main purpose for the decision during the Constitutional Convention to have an appointed attorney general was to have a strong executive branch, and one reason for that is so that Alaska could "stand strong as a small state in a large country." He emphasized the importance of reading that part of the floor debate from the Constitutional Convention related to the attorney general as a reminder of what the members of that convention argued about. He said there were other arguments, such as whether [attorneys general] should be approved by the legislative council, brought up by the judicial council, or appointed by the [Alaska] Supreme Court. He offered further details. 9:40:04 AM CHAIR LYNN said this is a significant issue and he wants to "put a lot of sunlight" on it. He said he thinks a good case can be made for both arguments. 9:40:47 AM REPRESENTATIVE JOHNSON suggested he could moved to adopt a conceptual amendment which could then be put into particular wording by Legislative Legal and Research Services. REPRESENTATIVE COGHILL stated that he strongly objects to making conceptual amendments to the constitution. He said he is "somewhat sympathetic to electing the attorney general." 9:41:42 AM REPRESENTATIVE JOHANSEN expressed his desire that the committee wait to offer any amendments until further reviewing the history aforementioned by Representative Coghill. 9:42:02 AM ALEX FOOT, Intern to Representative Harry Crawford, Alaska State Legislature, on behalf of Representative Crawford, prime sponsor of HJR 6, offered his understanding that approximately one-third of the delegates to the Alaska Constitutional Convention voted in favor of electing the attorney general. REPRESENTATIVE CRAWFORD stated his belief that Representative Coghill had hit upon the crux of the argument: the Constitutional Convention delegates put the power in the hands of the governor. He said Alaska has, arguably, the most powerful governor of all 50 states, and he believes that was a mistake. He stated his belief that the state does not need an imperial governorship; conversely, it needs checks on its administration. He reiterated that he likes the idea of a slate election, and he recalled that Representative Doll had requested that there be term limits, which is an idea he said "would be in order, as well." 9:44:29 AM MR. FOOT announced, "Twenty-one states currently employ straight-ticket voting." 9:44:45 AM CHAIR LYNN closed public testimony. 9:44:54 AM REPRESENTATIVE JOHNSON said he wants the opportunity to run his amendment by Legislative Legal and Research Services before presenting it. 9:45:36 AM CHAIR LYNN asked Representative Doll to do the same with her amendment. He said the committee would hold the resolution and bring it back "fairly rapidly." He stated his intent to move the bill in an expedient manner. 9:46:49 AM REPRESENTATIVE GRUENBERG, "in light of the two [potential] amendments," noted that in recent past, there was an attorney general who was appointed by former Governor Walter J. Hickel, continued to serve under former Governor Tony Knowles, and served longer than eight years. [HJR 6 was heard and held.]
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