04/13/2009 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation - Wayne Anthony Ross - Attorney General | |
| SB54 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 49 | TELECONFERENCED | |
| + | SB 156 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 54 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 13, 2009
1:37 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Gene Therriault
MEMBERS ABSENT
Senator Lesil McGuire
COMMITTEE CALENDAR
CONFIRMATION HEARING
Attorney General
WAYNE ANTHONY ROSS - Anchorage
- NAME ADVANCED
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 49(JUD) AM
"An Act relating to the prohibition of the exercise of the power
of eminent domain against a recreational structure for the
purposes of developing a recreational facility or project."
SCHEDULED BUT NOT HEARD
SENATE BILL NO. 156
"An Act relating to the Interstate Compact for Juveniles;
relating to the State Council for Interstate Adult and Juvenile
Offender Supervision; amending Rules 4 and 24(b), Alaska Rules
of Civil Procedure; and providing for an effective date."
SCHEDULED BUT NOT HEARD
SENATE BILL NO. 54
"An Act making sales of and offers to sell certain energy
resources by a refiner at prices that are exorbitant or
excessive an unlawful act or practice under the Alaska Unfair
Trade Practices and Consumer Protection Act."
MOVED CSSB 54(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 54
SHORT TITLE: PRICE GOUGING INVOLVING ENERGY RESOURCES
SPONSOR(s): SENATOR(s) WIELECHOWSKI, ELLIS, FRENCH
01/21/09 (S) PREFILE RELEASED 1/16/09
01/21/09 (S) READ THE FIRST TIME - REFERRALS
01/21/09 (S) ENE, RES, JUD
02/12/09 (S) ENE AT 11:00 AM BUTROVICH 205
02/12/09 (S) Heard & Held
02/12/09 (S) MINUTE(ENE)
03/13/09 (S) ENE AT 11:00 AM BUTROVICH 205
03/13/09 (S) Moved CSSB 54(ENE) Out of Committee
03/13/09 (S) MINUTE(ENE)
03/16/09 (S) ENE RPT CS 1DP 3NR SAME TITLE
03/16/09 (S) DP: WIELECHOWSKI
03/16/09 (S) NR: MCGUIRE, KOOKESH, STEDMAN
03/16/09 (S) FIN REFERRAL ADDED AFTER JUD
03/18/09 (S) RES AT 3:30 PM BUTROVICH 205
03/18/09 (S) Heard & Held
03/18/09 (S) MINUTE(RES)
03/27/09 (S) RES AT 3:30 PM BUTROVICH 205
03/27/09 (S) Moved CSSB 54(RES) Out of Committee
03/27/09 (S) MINUTE(RES)
03/30/09 (S) RES RPT CS 2DP 2NR 1AM NEW TITLE
03/30/09 (S) DP: WIELECHOWSKI, FRENCH
03/30/09 (S) NR: MCGUIRE, STEVENS
03/30/09 (S) AM: HUGGINS
04/03/09 (S) JUD AT 1:30 PM BELTZ 211
04/03/09 (S) EMINENT DOMAIN: RECREATIONAL STRUCTURES
04/10/09 (S) JUD AT 1:30 PM BELTZ 211
04/10/09 (S) Heard & Held
04/10/09 (S) MINUTE(JUD)
WITNESS REGISTER
WAYNE ANTHONY ROSS, Attorney General Appointee
Anchorage, AK
POSITION STATEMENT: Testified as Appointee to the position of
Attorney General.
ACTION NARRATIVE
1:37:52 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:37 p.m. Present at the call to
order were Senators Wielechowski, Therriault and French.
^Confirmation - Wayne Anthony Ross - Attorney General
Confirmation - Wayne Anthony Ross - Attorney General
1:38:00 PM
CHAIR FRENCH announced the continuation of the confirmation
hearing for Wayne Anthony Ross to the position of Attorney
General for the State of Alaska. He explained that he would pose
questions on a number of topics, but he didn't intend to replow
any ground that had been covered in this committee's previous
hearing or by the House Judiciary Committee.
CHAIR FRENCH asked Mr. Ross what years he put his name forward
to be a judge.
WAYNE ANTHONY ROSS, Appointee, Attorney General, replied it was
probably three or four years ago; once for a position on the
state supreme court and once for the court of appeals.
CHAIR FRENCH asked him to comment on the overall ratings he
received in the two bar polls. He noted that one was a 2.9 and
the other was a 2.8, which is just short of acceptable.
1:40:45 PM
MR. ROSS related that he was told that his application generated
the highest number of positive comments and the highest number
of negative comments of any applicant. He said he doesn't know
what that means, but he's practiced law for 40 years and he
wasn't there to win a popularity contest. He was there to
represent his clients. When you take public positions on issues
the people who disagree with you remember that, he said. I'm not
surprised, he added.
CHAIR FRENCH asked if [Alaska Supreme Court Justice] Robert
Eastaugh is a conservative.
MR. ROSS replied he though so when they first met many years
ago. "Some of his decisions - I wouldn't think that he is
anymore," he added.
CHAIR FRENCH asked if [former Alaska Supreme Court Justice]
Daniel A. Moore was a conservative.
MR. ROSS replied, "I thought he was."
1:42:38 PM
CHAIR FRENCH said you wrote a letter in 1993 to the "Bar Rag"
and referred to homosexuals as degenerates. He asked, "Do you
still hue to that view Mr. Ross? Are homosexuals degenerates?"
MR. ROSS replied:
My job is to be the Attorney General for the State of
Alaska and represent all Alaskans. My personal
opinions in that regard have no place … and I decline
to state my opinion. I represent all Alaskans. Years
ago I didn't represent all Alaskans. There's a
difference.
CHAIR FRENCH said this is an opportunity to disavow that view
and asked if he is declining the opportunity.
MR. ROSS replied:
I represent all Alaskans and I intend to represent all
Alaskans. My personal opinion means nothing. I think I
said last week that I don't like lima beans and if I
represented the United Vegetable Growers, I probably
wouldn't come out and say I don't like lima beans
because I have clients. I have a client that's all the
people of the state of Alaska and that's who I'm going
to be representing. It doesn't matter what their
sexual orientation is.
1:44:00 PM
SENATOR WIELECHOWSKI asked if it's appropriate for an attorney
general to refer to a group of people as degenerates or immoral.
MR. ROSS replied, "No, that's why I have the attorney general's
hat on. No I don't."
SENATOR WIELECHOWSKI asked if he still adheres to the statement
he made years ago when he said homosexuals were degenerates and
immoral.
MR. ROSS replied, "I was not attorney general at that time."
SENATOR WIELECHOWSKI said, "That's not the question I asked you.
I just asked you a simple question whether or not you still
adhere to that position."
MR. ROSS replied:
I thought I answered that with Senator French. My
answer was it's not appropriate for the attorney
general to label Alaskans one way or another unless
they're criminals. And I'm not going to answer that
question. I represent all Alaskans.
SENATOR WIELECHOWSKI said, "I'm asking if you still adhere to
that position."
1:44:52 PM
MR. ROSS responded that he took the oath as attorney general and
he isn't going to say what his personal opinions are.
SENATOR WIELECHOWSKI asked if he is refusing to answer the
question.
MR. ROSS replied that's correct, but it doesn't mean we can't be
friends.
SENATOR WIELECHOWSKI replied it doesn't mean that, but I'm
trying to evaluate your qualifications for the position. "When
you call a group of people degenerates, I'm curious to know
whether you still adhere to that viewpoint. And by your
reluctance to answer the question I take it that's a yes."
MR. ROSS responded you can take it however you want but I took
an oath that says I represent all Alaskans and that's what I
intend to do.
1:45:32 PM
SENATOR THERRIAULT said if as attorney general he would take
steps to protect the legal or constitutional rights of gays and
lesbians as Alaska citizens.
MR. ROSS replied he absolutely would.
SENATOR WIELECHOWSKI asked if he would take steps to uphold the
rights of a group of people he considers to be degenerates and
immoral.
MR. ROSS said, "Absolutely."
SENATOR WIELECHOWSKI asked if he's telling the committee that as
attorney general he would defend a group of people he considers
to be degenerates.
MR. ROSS replied, "If the law gives certain people rights,
that's my job."
1:46:29 PM
CHAIR FRENCH highlighted the 2/10/09 letter that Mr. Ross wrote
and sent to all Senate members in response to the Senate passing
a contempt resolution regarding the witnesses who did not
respond when they were subpoenaed. He asked Mr. Ross if he had a
copy of the letter.
MR. ROSS said yes he did have a copy. He continued:
You did get the letter - I'm glad that you got it
because I never got a response to it. So I'm glad to
see that you got it and I'm happy to discuss it.
CHAIR FRENCH asked Mr. Ross to elaborate on the statement he
made in paragraph two of his 2/10/09 letter. He read:
But some legislators chose to hire Steve Branchflower
to handle that investigation and, as you are aware,
[speaking to all the members of the Senate] he
subpoenaed a number of state employees to give
testimony on the issue.
MR. ROSS replied, "No, I think that's fairly clear. That's my
understanding of what took place."
CHAIR FRENCH asked if he is aware of the error in that sentence.
MR. ROSS said no.
CHAIR FRENCH asked, "You are not aware that Mr. Branchflower did
not have subpoena powers?"
MR. ROSS replied:
Yes, but he acted through the legislature in my
opinion, and he wanted people to come - sure. That's a
wordsmith there. Remember, the only information I have
is what I read in the paper so if there's errors you
may have to attribute it to the papers.
CHAIR FRENCH asked if he represented a client in this matter.
MR. ROSS replied he did.
CHAIR FRENCH asked, "You did not attend the Senate Judiciary
Committee hearings when the subpoenas were issued?"
MR. ROSS replied he did not.
CHAIR FRENCH asked, "You did not follow that matter closely?"
MR. ROSS replied, "No, I heard about it after that whole thing
took place - I got involved later."
CHAIR FRENCH asked if it was an intentional error to suggest
that Mr. Branchflower subpoenaed anybody.
MR. ROSS replied:
I don't know that it's intentionally an error at all.
…As I understand it, the subpoena came out and the
people were supposed to come talk to Mr. Branchflower.
If they were supposed to appear in front of this
committee, that's something else again. But if there
was an error, you got the letter on the tenth of
February 2009; it's now the thirteenth of April. You
had over 60 days to correct that error on my part. You
didn't bother even to answer, so it's a little tough
to come after me in the middle of a hearing for
confirmation when you could have corrected my errors a
long time ago.
1:49:36 PM
CHAIR FRENCH responded, "I guess I see it differently. I didn't
ask for this letter. You sent it to all the members of the
Senate. You didn't address it to me sir. Did you?"
MR. ROSS replied, "I believe the original letter came directly
to you and I asked you to distribute it to all the members of
the Senate and your office refused."
CHAIR FRENCH asked, "Yes or no, is my name on this letter?"
MR. ROSS replied, "I think it says 'Senator.' Your name is not
specifically on that letter. Whether your name is on another
copy of the letter I don't know, but it's not on this copy."
1:50:02 PM
CHAIR FRENCH asked if he is aware of the error in the following
sentence that's at the bottom of page 2:
The Senate should not have ordered and paid for an
investigation by outside counsel for what appeared to
be political purposes.
MR. ROSS said no, but I'm willing to be educated.
CHAIR FRENCH asked if he is aware that the Senate did not begin
the investigation.
MR. ROSS replied I didn't say the Senate began the
investigation.
CHAIR FRENCH asked if he's aware that the Senate neither ordered
nor paid for an investigation.
MR. ROSS replied, "It's my understanding that that you
appropriated $100,000 for an investigation and you directed Mr.
Branchflower to do it."
CHAIR FRENCH said that is your second error; it was the
Legislative Council that ordered the investigation. That
committee is composed of members from both bodies.
MR. ROSS said, "Good."
1:51:54 PM
CHAIR FRENCH stated:
You cite several cases in your letter - Moss v. State,
Taylor v. District Court, 4th Judicial District,
Stadler v. State. I took the time to read those cases
and I found that they are all about criminal contempt
coming from a court and I'm curious about why you
chose that as an analogy given that we are the
legislature and not a court. Can you comment on that?
MR. ROSS replied:
Yes, you found those people in contempt and it was
more of a criminal contempt than a civil contempt. A
civil contempt is a contempt that you impose in an
effort to coerce people to do something. And they can
purge themselves from contempt by doing what you
direct them to do. A criminal contempt is the contempt
in which you seek to punish them for something they
did in the past. They don't have any method of purging
themselves from that criminal contempt. So it's quite
clear that your finding - you weren't attempting to
coerce them to do something. You were attempting to
punish them even if it be a punishment of just being
found to be in contempt of the legislature. The
criminal aspects just seemed a lot more appropriate
than any civil contempt.
CHAIR FRENCH clarified that his question was not about the legal
technicalities of whether it was civil or criminal. He said my
question was why you chose to analogize Senate powers to a court
because the analogy is more appropriate to the powers of
Congress. "We're a legislative body. You understand the
difference of course and I'm asking why you didn't look up cases
relating to Congress's power of contempt."
MR. ROSS responded, "I represented an individual - a state
employee who should have never been involved in a battle…"
CHAIR FRENCH asked Mr. Ross to answer the question about
Congress's power of contempt.
MR. ROSS responded:
If you're not interested in my answer that's fine. If
you want my answer I'll give it. But your question was
why did I look up certain cases and not look up other
cases. I was prepared to answer that question if you
have an interest in hearing it. If you don't, that's
fine.
CHAIR FRENCH asked Mr. Ross to proceed.
MR. ROSS continued:
One of the reasons I did that was because I
represented a state employee who found herself in a
battle between … the executive and the legislative
branches of government. State employees should be
allowed to do their job. They shouldn't be caught up
in battles - the power battles between one branch of
government and another. And this employee did not get
decent legal advice from the state in my opinion, and
found herself caught in the middle. I could have spent
many hours running up attorney's fees bill, but it was
simple to cite the cases I did to show that the
procedures used by the legislature to find these
people in contempt were improper. I could have cited a
lot more - run up more bills, but it's not fair to put
that employee to even greater expense that she was.
1:55:42 PM
SENATOR WIELECHOWSKI asked if he believes the legislature has
the authority to subpoenas witnesses to testify before it.
MR. ROSS said yes.
SENATOR WIELECHOWSKI asked if he believes that the Senate or
House has the ability to hold a witness in contempt if they
don't appear in response to a subpoena.
MR. ROSS said yes.
SENATOR WIELECHOWSKI asked if he advised the witness in this
particular case not to adhere to the subpoena.
MR. ROSS replied that falls under attorney client privilege.
SENATOR WIELECHOWSKI asked who paid his legal fees in this case.
MR. ROSS replied it was the employee.
SENATOR WIELECHOWSKI asked if it was Ivy Frye.
MR. ROSS answered yes.
1:56:23 PM
CHAIR FRENCH said the third paragraph of your letter references
a memorandum from the attorney general, which indicated that a
legal issue existed as to the validity of the subpoenas. He
asked Mr. Ross if he had seen a copy of that memorandum.
MR. ROSS replied he recalls he did see a copy.
CHAIR FRENCH asked, "Are you aware that your letter was the
first public indication that I had that there was such a
memorandum?"
MR. ROSS replied, "No; I'm surprised you didn't see it. I saw
it. You're on the inside; you should have seen it. It was kind
of a less than clear memorandum."
1:57:05 PM
CHAIR FRENCH said, "In the memorandum the attorney general
offered an opinion about the legality of the subpoenas." He
asked if that is correct.
MR. ROSS replied that's his recollection, but it's been a while
since he looked at it. "I don't know that it was a real strong
opinion," he added.
CHAIR FRENCH asked if he agreed with the opinion.
MR. ROSS replied:
I thought it was not much of an opinion. The whole
thing was handled very badly Senator. It was handled
badly by the legislature; it was handled badly by the
governor's office. Had I been the attorney general we
could have resolved this thing a lot sooner in my
opinion, and without the state employees being caught
in the middle.
CHAIR FRENCH asked Mr. Ross to give a yes or no answer as to
whether the subpoenas were legal.
MR. ROSS replied:
At the time I wasn't sure. It's my understanding that
the courts have indicated that they probably were. But
I would not have probably even gotten to that issue. I
think that issue was really irrelevant. It just seems
a shame that the parties couldn't have worked together
towards resolving a matter rather than getting
involved in litigation between branches.
CHAIR FRENCH said:
Mr. Ross, I have very specific and clear memories of
that and very specific and clear memories of overture
after overture to resolve this, and having been
rebuffed over and over by the individuals and issue.
So if you're suggesting that other individuals could
have handled themselves better, I completely agree
with you.
1:58:46 PM
SENATOR THERRIAULT asked Mr. Ross if he would agree that with
regard to the power of the legislature to issue subpoenas, it is
a clearer issue if the subpoena is to compel somebody to come
before a committee to testify.
MR. ROSS said he didn't understand the question.
SENATOR THERRIAULT restated that the subpoenas were for people
to make themselves available to an investigator that the
legislature had hired.
CHAIR FRENCH called a point of order in the question. "That's
not true," he said. As a matter of keeping the record clear, the
subpoenas commanded the attendance of a witness before the
committee, Senator French said. The individuals could have
complied with the subpoena by meeting with Mr. Branchflower, so
there was an avenue out of appearing in front of the committee.
The committee has no other legal authority, he said.
SENATOR THERRIAULT said he agrees, but it was a strange issue.
He continued:
State employees previously had been given the option
to talk to the investigator and that would satisfy the
subpoenas. And some - other than your client - state
employees were unclear, and so were their private
attorneys, on just exactly what they were being asked
to do and what their legal rights as individuals would
be if, in fact, they complied. I know I talked to a
separate state employee that was unsure of what his
rights would be with regard to if he answered
questions of the investigator. Would they be public?
It's my understanding that certainly in the criminal
side, there is a lengthy set of rules that tell a
person that if they respond to a subpoena or when they
respond to a subpoena - how they're going to be
treated, what's going to happen to the information, is
it confidential, is it on the Internet that afternoon.
And it would seem to me like there was a lot of
uncertainty. I'm wondering if you discussed that with
your client - without violating attorney client
confidentiality - whether some of that entered into
your thought process and the advice that you gave to
your client.
2:01:16 PM
MR. ROSS said he told his client it was a goat rope as to who
had legal responsibility and who didn't and who had authority
and who didn't. She should not have been put in that position
and had he been attorney general that wouldn't have happened. He
continued:
I would have done my very best to see to it that the
legislature wasn't put in the position where their
rights were challenged. I would have done my best to
see to it that the state employees were not put in the
position where they were caught in the middle. It was
handled very badly by a number of sides and that's all
I'm going to say. I'm not going to plow old ground and
criticize my predecessor.
SENATOR THERRIAULT said a previous attorney general holds the
same opinion. The entire matter should have been handled so as
to turn down the volume and get to the truth rather than the way
it played out.
2:02:29 PM
CHAIR FRENCH recognized Senator Linda Menard had joined the
committee.
CHAIR FRENCH asked Mr. Ross if he would like to comment on some
of the statements that have been made and emails that have been
sent regarding his attitude towards women.
MR. ROSS said no; he's enjoyed the confirmation process. He
continued:
Winston Churchill said 'Nothing's more exhilarating
than to get shot at and missed.' But there was a
letter from the lady named Burton that really made me
angry. I sent the legislature a letter that outlines
my position on women. It's old fashioned. My father
told me that there is no greater honor that a man
could have than if a dad lets that man take his
daughter out on a date. And there's no greater harm
that you can do than to breach the trust that that
dad's put in you when you take his daughter out.
Women are very special to me. The comments made by Ms.
Burton were outrageous and they were nothing but lies
- if in fact she wrote that letter. I don't know if
she did. I don't know who she is. The letter was
unsigned. I've been married to the same wonderful
woman for almost 41 years. If I ever raised any of
those kinds of comments to my wife, there'd be Hell to
pay because she wouldn't put up with it. … I open the
doors for women, I tip my hat to them, I stand up when
they come in the room and if that makes me a dinosaur
so be it. But that's the way I treat women and not the
way that letter implies. Comments like that - had they
been made to me would have stirred my wrath and to
allege that I made such comments really stirs my
wrath.
2:05:52 PM
CHAIR FRENCH said I thought it was important to give you an
opportunity to respond.
MR. ROSS said, "Thank you; I appreciate that very much."
SENATOR WIELECHOWSKI asked, "If an attorney general candidate
had made comments like Ms. Burton is alleging, do you believe
that would disqualify that person from sitting as attorney
general."
MR. ROSS replied it would raise a question about
appropriateness.
SENATOR WIELECHOWSKI said, "So if it were to come out that those
statements were true, then do you believe that that would
disqualify you from being attorney general?"
MR. ROSS replied,
Those statements were made allegedly in 1991. … I ran
for governor in 1998; I ran for governor in 2002. Such
statements certainly should have raised questions as
to whether or not a person should be governor. They
were never mentioned by Ms. Burton. They only were
raised now when Governor Palin put my name forward and
it appears, from what I've read in the paper at least,
that Ms. Burton has some disagreements with the
governor not with me. And so I think you have to ask
yourself why someone would come out from the shadows
and attack somebody through lies. And those are lies.
2:07:30 PM
CHAIR FRENCH clarified that all the emails his office received
are unsigned. That includes emails in support and in opposition
to the appointment. This is not uncommon, he said.
MR. ROSS responded, "That's why I didn't accuse Ms. Burton of
lying because I don't know if she signed it or somebody else
sent an email over her statement. But if she went and signed it,
I'll call her a liar."
SENATOR THERRIAULT asked Senator French if he or his staff had
been in touch with Ms. Burton to find out about the statement.
The email says that Ms. Burton was outside the meeting room and
she was listening in. He said he was struck by the fact that she
has quotation marks around the statement that Mr. Ross made.
MR. ROSS said, "I didn't make that statement."
SENATOR THERRIAULT responded but the suggestion is that you did.
He said he wonders if Ms. Burton jotted herself a note or if she
is paraphrasing. That particular statement has gotten a life of
its own and he'd like to know how she can be so certain.
CHAIR FRENCH said he has had no contact with Ms. Burton and the
question he was asking Mr. Ross was intended to be more global
with respect to his view on women. He noted that although he
isn't interested in getting into any particular allegation, Ms.
Burton isn't the only woman who has written his office
expressing the view that Mr. Ross has a bad or unusual attitude
toward women. "That's why I wanted to give Mr. Ross the
opportunity to respond. And I think what he said today is that
he's protective of women -- chivalrous even, and old fashioned,"
Senator French said.
MR. ROSS said that's a good summary.
2:10:36 PM
CHAIR FRENCH asked Mr. Ross if he thinks it's acceptable
behavior to dump buckets of water on women.
MR. ROSS responded it's absolutely not okay to dump buckets of
water on protesters.
CHAIR FRENCH asked if he represented Mr. Webster on a charge
akin to dumping water on women.
MR. ROSS said he did represent Mr. Webster.
CHAIR FRENCH asked if he represented Mr. Webster for free.
MR. ROSS replied he didn't intend to do it for free, but it
ended up that way.
CHAIR FRENCH noted that the newspaper said he volunteered to
represent Mr. Webster and asked if that's inaccurate.
MR. ROSS replied, "No, that's correct."
CHAIR FRENCH said, "So you walked into it thinking you weren't
going to get much out of it in the way of recompense."
MR. ROSS said yes.
2:11:51 PM
CHAIR FRENCH said, "You believed that he needed a defense."
MR. ROSS said yes.
CHAIR FRENCH told Mr. Ross that he would recite the facts of the
case as reported in the newspaper after which Mr. Ross could
comment.
MR. ROSS responded that he could tell the committee what the
facts of the case were.
CHAIR FRENCH said thanks, but he'd prefer to recite the facts.
MR. ROSS said, "I was there though."
CHAIR FRENCH responded, "You weren't there when the assault
happened."
MR. ROSS said, "I saw the movie."
CHAIR FRENCH clarified that he'd ask the question and Mr. Ross
would have an opportunity to respond. He read the following:
During the buildup to the war in March of 2003 a
handful of war protestors stood at the Soldotna Y
intersection holding a variety of signs…including
peace signs, a U.S. flag, and sometimes they had
pictures of U.S. servicemen and women. The protestors
included pacifists, Quakers, a local doctor, and an
Air Force wife.
Mr. Webster lived about seven-tenths of a mile away
and frequently drove through that intersection. Around
March 22 he drove past the protestors and threatened
to douse them. Two days later on March 24 he threw
water on two women holding signs at the Y. Both women
were soaked and the signs became unreadable. Soldotna
police, contacted by the demonstrators, warned Mr.
Webster not to do it again. The protestors declined to
press charges saying they knew that Mr. Webster was
under stress.
Mr. Webster returned a week later and was verbally
confrontational with the two women and more physical
with one of the men present, a man named Daniel Funk,
and threatened to beat Mr. Funk up. Then, in the final
confrontation Mr. Webster returned a day or two later
riding in the bed of a truck and dumps two buckets of
water on the protestors. The assault is videotaped and
Mr. Webster distributes that videotaped assault. The
video was set to music and as the water showers the
sign holders, someone is singing "God Bless the USA."
2:13:42 PM
CHAIR FRENCH asked if the foregoing facts are accurate.
MR. ROSS replied they sound fairly accurate.
CHAIR FRENCH asked Mr. Ross to tell the committee why he felt
compelled to represent Mr. Webster.
MR. ROSS explained:
Mr. Webster was the father of a Marine who was
fighting in - if I recall - Iraq. I was the father of
a Marine that was fighting in Iraq and I felt that
while I did not agree with Mr. Webster's actions, I
felt I could understand his reasons for them and that
he was entitled to a defense and why not a defense
from another Marine's father.
CHAIR FRENCH asked if he's saying he did not agree with Mr.
Webster's actions.
MR. ROSS replied, "I did not agree with his actions, no."
CHAIR FRENCH asked if his statements to the press to the
contrary were simply that he was acting as Mr. Webster's lawyer.
MR. ROSS said, "Yes sir." He added that the agreement was that
Mr. Webster would pay expenses, but that didn't happen. "I think
he stiffed me for about $800," he said.
CHAIR FRENCH noted that then Attorney General Renkes said,
"We're fighting the war to protect the freedoms we have here in
this country. People don't have the right to harass people
expressing their opinions lawfully." Senator French asked Mr.
Ross if he would have issued that statement had he been attorney
general at the time.
MR. ROSS replied, "Not if I was Mr. Webster's attorney."
CHAIR FRENCH repeated the question.
MR. ROSS replied, "Probably not."
CHAIR FRENCH asked if he would have pressed charges had he been
attorney general at the time.
MR. ROSS said yes. The police treated Mr. Webster fairly in that
they simply had a chat with him the first time. "Mr. Webster
didn't benefit from the chat the police had so the police had,
in my opinion, no alternative but to prosecute," he said.
2:16:07 PM
CHAIR FRENCH asked if he agrees that the protesters declined to
press charges.
MR. ROSS answered yes.
CHAIR FRENCH said, "They turned the other cheek."
MR. ROSS replied, "The first time."
CHAIR FRENCH asked how many times you should turn your cheek.
MR. ROSS replied, "I don't think that's the prerogative of the
attorney general to answer that question."
2:16:36 PM
SENATOR WIELECHOWSKI said you stated that Mr. Webster was
harassed.
MR. ROSS responded that's correct; Mr. Webster had encountered
the protesters in downtown Kenai and he objected to their signs.
The protestors then moved away from downtown and relocated at an
intersection that Mr. Webster passed every day. "There was some
indication that the signs indicated that Marines were killing
innocent women and children. It was arguable then that perhaps …
that they were targeting Mr. Webster after he had protested what
they were doing initially," he said.
SENATOR WIELECHOWSKI noted that Mr. Ross has stressed adherence
to the constitution and asked if he as attorney general would
file harassment charges against protesters that he disagreed
with.
MR. ROSS said no; it's his opinion that the protesters were
cruel, but they were entitled to do what they did. "Mr. Webster
reacted and what he did he was not legally entitled to do. So
there's a difference between using good judgment and being cruel
and violating the law," he said.
2:18:24 PM
SENATOR THERRIAULT said my personal view is that Mr. Webster's
behavior was abhorrent. He could and should have taken a
different action. Having taken the action that he did, I think
it's your opinion that Mr. Webster needed legal representation
in the system. He asked if that's correct.
MR. ROSS replied, "He needed legal representation and
surprisingly even though he had videotaped the whole thing I
beat two out of five charges, which I thought was kind of a
miracle and pretty good job."
SENATOR THERRIAULT related:
I'm hard pressed sometimes in our budgeting process to
appropriate money to the Public Defender's Office to
defend rapists [and] child molesters, but in our
system everybody has to have representation so I guess
I don't fault you for offering that representation.
And I'm glad to hear you say that if you had been the
attorney general and if you had reviewed that fact
pattern, you would have been okay with pressing the
charges. That he crossed the line. He was then in
violation of their constitutional rights. Is that
correct?
2:19:57 PM
MR. ROSS responded he wouldn't have been okay, but he would have
prosecuted. Mr. Webster was warned the first time and the police
didn't have to do that. When he was prosecuted the next time he
had a right to a defense. "If Marine Corps dads can't stick
together at least to make the system work there's something
wrong," Mr. Ross added.
CHAIR FRENCH said Mr. Ross you say you did a good job for Mr.
Webster and helped him beat two of the charges.
MR. ROSS added that it was two of five charges.
CHAIR FRENCH pointed out that the July 9, 2003 ADN reported that
until Mr. Webster linked up with Mr. Ross he was going to plead
guilty to a harassment charge. Had he pled guilty to harassment
he would have faced a maximum 90 days in jail, but he was
convicted of charges that had him facing 18 months jail time.
"So I guess I disagree with your analysis of the efficacy of
your representation," Senator French said.
MR. ROSS responded, "He didn't spend any time in jail and I
don't know of any plea offer that was given him that he didn't
take. And he was charged with violating the civil rights of the
protestors so I think he was satisfied." He added that the judge
in the case was subsequently removed.
CHAIR FRENCH asked why he brings that up.
MR. ROSS replied, "Because I thought I did a pretty good job in
view of the fact that the judge was later found to be pretty
close to in cahoots with the prosecutors."
CHAIR FRENCH asked if he is suggesting that the rulings the
judge made against him were unethical.
MR. ROSS replied, "Improper."
CHAIR FRENCH asked if he filed an appeal.
MR. ROSS said no; he thought he and his client were satisfied
with what took place.
SENATOR WIELECHOWSKI asked if it's true that he does not stand
up when judges enter the room.
MR. ROSS replied, "That's absolute falsehood. I'm one of the few
guys that does now-a-days and … if I'm going to be seated during
cross examination I always ask the court if I have permission to
be seated."
SENATOR WIELECHOWSKI related that he read that in the "Bar Rag."
MR. ROSS replied he's read that too and it's poetic license.
2:23:24 PM
CHAIR FRENCH asked Mr. Ross which day he was hired as attorney
general by the governor.
MR. ROSS replied he started March 31.
CHAIR FRENCH asked Mr. Ross if he's aware of the recent effort
to seat a senator for the Juneau District B seat.
MR. ROSS asked if he's talking about the one the governor's been
involved in.
CHAIR FRENCH said yes.
MR. ROSS said he's read the paper and is aware of the effort.
CHAIR FRENCH asked if he's had a role in the legal aspects of
that vacancy.
MR. ROSS responded:
I think I read the paper and I think I looked at the
'87 opinion and I may have talked to one of the
attorneys that's handling it, but I haven't had really
much time to do anything of a legal nature. I've been
doing a dancing bear act in this building for two
weeks.
CHAIR FRENCH highlighted that someone advised the governor that
there was a legal basis for asking the 19 remaining senators
vote to seat the appointee. He asked Mr. Ross if he had a role
in developing that legal opinion.
MR. ROSS replied he did not have a role, but he agrees with it.
"I think it should be open and above board."
CHAIR FRENCH said his question is whether the 19 remaining
Senators all should vote.
MR. ROSS said no; the law indicates that the members of the same
party as the predecessor should vote on the replacement.
2:25:22 PM
SENATOR THERRIAULT asked who would vote to confirm the
governor's nomination if the Senate had only one Democrat and
that person resigned to take a different job.
MR. ROSS answered it would probably be the members of the same
party
SENATOR THERRIAULT said there would be no Democrat left and that
points out the problems with the existing statutes.
MR. ROSS said there appear to have been some conflicts in past
processes.
2:26:36 PM
SENATOR WIELECHOWSKI said when you ran for governor you issued a
position paper saying you wanted to cut the permanent fund
dividend and use the money for government spending.
MR. ROSS responded that is not correct.
SENATOR WIELECHOWSKI pointed out that, "You said reducing our
permanent fund dividend is a difficult decision for all of us.
This position paper says this is the personal commitment all
Alaskans must now make to restore our state prosperity."
MR. ROSS clarified that he adhered to the Cremo Plan, which
called for putting all state revenue into a super permanent
fund. A certain amount would be allocated for state expenditures
and for a dividend so that you would know each year how much
money was available. But too much water is under the bridge to
do that now, he said.
SENATOR WIELECHOWSKI asked if he has the same position on the
permanent fund today.
MR. ROSS answered these are different times and the state
government is too large. It might no longer be economically
feasible.
SENATOR WIELECHOWSKI noted that former Attorney General Renkes
handed down an important opinion in 2003. He asked Mr. Ross if
he recalls the dispute associated with the following:
The attorney general determined that unrealized gains
or losses from investment of the fund principal should
be accounted for in the principal and that only
realized gains or losses should become an element to
be accounted for annually in determining net income of
the fund.
2:29:41 PM
MR. ROSS responded "I have no idea what you're talking about."
SENATOR WIELECHOWSKI said there is a question as to whether or
not it is constitutional to pay out permanent fund dividends
when the fund didn't make any money. "At some point in time I
imagine you're going to be called on to issue that opinion and
it will impact whether…Alaskans get their dividends or not."
It's an important issue to all Alaskans and I'm interested if
you have an opinion, Senator Wielechowski said.
MR. ROSS answered, "I don't; and I'm encouraged to hear you say
at some time I'll be called upon to give that opinion because to
give that opinion I have to get confirmed so that could be an
indication of the way you'd vote."
2:31:12 PM
SENATOR WIELECHOWSKI referenced an ADN article from 3/26/03
regarding a dispute over a letter Mr. Ross had written and asked
if he recalls the following:
In a letter to incumbent Mayor George Wuerch, Ross
told the mayor he would not support him because Wuerch
refused to help a friend get into the Anchorage Fire
Department.
MR. ROSS answered he doesn't recall writing the letter, but it's
possible. He does recall a man not getting into the fire
department and he did have a case of 7 or 8 men who didn't get
in.
SENATOR WIELECHOWSKI asked Mr. Ross if that is something he
would have done.
MR. ROSS responded he doesn't recall that; George Wuerch is a
friend and fellow Marine.
SENATOR WIELECHOWSKI asked Mr. Ross if he believes that Roe v.
Wade should be overturned.
MR. ROSS said, "Yes."
SENATOR WIELECHOWSKI asked if he has plans to file a lawsuit to
overturn Roe v. Wade.
MR. ROSS "No; been there done that. It's not my job as AG."
SENATOR WIELECHOWSKI asked if as attorney general he would
prosecute individuals in a case where an abortion clinic was
bombed.
MR. ROSS answered, "Absolutely; follow the law."
2:33:28 PM
SENATOR WIELECHOWSKI noted that former Attorney General Colberg
issued an opinion that he believed that gay partners of public
employees should receive benefits. Do you agree or disagree with
that opinion and as attorney general would you have issued a
similar opinion, Senator Wielechowski asked.
MR. ROSS answered he would follow the law; that is the attorney
general's obligation.
2:34:21 PM
SENATOR WIELECHOWSKI asked Mr. Ross if he knows about the Real
ID Act.
MR. ROSS replied he's heard of it.
SENATOR WIELECHOWSKI explained that it's a federal law that
requires each state to have a national driver's license and last
year Alaska passed a law prohibiting state dollars from being
used to implement that federal law.
MR. ROSS surmised that the reason was that it was an unfunded
mandate.
SENATOR WIELECHOWSKI said that was one argument and asked if he
supports attempts to implement the Real ID Act here in Alaska.
MR. ROSS responded he does not have a position on that issue.
SENATOR WIELECHOWSKI asked if he has a position on right-to-work
legislation.
MR. ROSS responded, "I have no position of right-to-work
legislation; I do believe people should not be forced to do
things that they don't want to do."
SENATOR WIELECHOWSKI asked if as attorney general he would
attempt to implement any laws to enact right-to-work
legislation.
MR. ROSS responded he does not view that as the attorney
general's job.
2:35:50 PM
SENATOR THERRIAULT asked whose job it is to direct Department of
Law resources on a high profile issue such as that.
MR. ROSS replied, "I would think the legislature or the
governor. Of course it would be my job if we were on the
receiving end of some litigation, but to go out tilting at
windmills just to find battles to get involved in, that's not my
job."
SENATOR THERRIAULT commented that the questions asked what he
intends to do as attorney general and it seems that on a lot of
those issues he would take whatever position the governor
directs him to take.
MR. ROSS responded he would give advice to the legislature and
the governor, but it would be a governor's or legislature's
decision.
SENATOR THERRIAULT said a lot of people jump to the conclusion
that the attorney general is the one who will file charges and
argue all the court cases, but it's his assumption that the
attorney general doesn't do that. Rather, he said he looks at
the attorney general as the manager of the state's law firm. He
asked Mr. Ross the degree to which he might interject himself
into daily litigation.
2:37:48 PM
MR. ROSS responded he's just beginning to see how the department
works, but he ascribes to Teddy Roosevelt's philosophy. That is
that a good executive hires the best people possible and then
stands back and allows them to do their job. Thus far it looks
like the Department of Law is a well-oiled machine. He
continued:
I see the greater oil that's needed to make the
machinery work better to be in the criminal justice
section than in the civil section. … The criminal
section seems to be working well except that I am
aware of problems in the district attorney's office in
Anchorage and I've heard rumors of problems in
Fairbanks. So I intend to visit all of those
departments and talk to the individual people and see
what we can do to improve the system. But the biggest
difficulty in the job is I love to go to court and I
probably won't be going to court too much anymore.
2:39:56 PM
SENATOR THERRIAULT said so you aren't coming to this appointment
with the preconceived notion that you are going to restructure
the Department of Law.
MR. ROSS responded that's correct.
SENATOR WIELECHOWSKI asked Mr. Ross if he has decided where his
office will be based.
MR. ROSS replied it will be in Anchorage and he will make
frequent trips to Juneau, particularly during the legislative
session.
2:40:38 PM
CHAIR FRENCH thanked Mr. Ross for his patience and asked for a
motion to forward his name.
At ease from 2:40:55 PM to 2:41:16 PM
SENATOR THERRIAULT moved to forward the name Wayne Anthony Ross
to the full legislature for consideration and stated that the
vote in committee is not an indication of how any member intends
to vote on the confirmation.
CHAIR FRENCH found no objection and announced that the name
Wayne Anthony Ross will be forwarded to a session of the joint
body for a confirmation vote in the near future.
At ease 2:41:53 PM.
SB 54-PRICE GOUGING INVOLVING ENERGY RESOURCES
2:46:02 PM
CHAIR FRENCH announced the consideration of the CS for SB 54.
[Before the committee was CSSB 54(RES).] He recapped that the
committee recently received an overview of the bill and had a
debate on its plusses and minuses. In response to the discussion
and working with Senator Wielechowski's office, an amendment has
been drafted.
CHAIR FRENCH moved Amendment 1, labeled 26-LS0209\W.2.
A M E N D M E N T 1
OFFERED IN THE SENATE
TO: CSSB 54(RES)
Page 1, line 2:
Delete "exorbitant or excessive"
Insert "unconscionable"
Page 1, lines 11 - 12:
Delete "exorbitant or excessive"
Insert "unconscionable"
Page 2, line 25:
Delete "exorbitant or excessive"
Insert "unconscionable"
2:46:44 PM
CHAIR FRENCH found no objection and announced Amendment 1 is
adopted. He explained that the amendment is in response to
testimony from Assistant Attorney General Ed Sniffen. He will be
in charge of prosecuting these cases and his view is that the
work "unconscionable" is a more customary term.
SENATOR THERRIAULT moved to report SB 54 from committee with
individual recommendations and attached fiscal note(s). There
being no objection, CSSB 54(JUD) moved from the Senate Judiciary
Standing Committee.
2:47:45 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 2:47 pm.
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