Legislature(1999 - 2000)
04/20/2000 09:10 AM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE CS FOR CS FOR SENATE BILL NO. 286(JUD)
An Act relating to the duties and powers of the
attorney general.
JIM POUND, STAFF, SENATOR ROBIN TAYLOR, explained that SB
286 was an attempt to clarify the duties of the Attorney
General, place into statute that the Attorney General
"shall" defend the Constitution of the State of Alaska, and
put into law that the Legislative power to make
appropriations constrains and limits the Attorney General's
authority to settle cases.
He noted that the Senate Judiciary Committee had worked
closely with members of the Subcommittee on privatization
and considered recommendations. The Subcommittee found that
the Attorney General is not a constitutional officer and
that the Legislature, by statute, may define the role and
responsibilities of the head of the Department of Law. He
pointed out that it was the intent of the legislation that
the Attorney General defend and uphold the Constitution of
the State of Alaska, and that any settlement entered into by
the Attorney General, which recognizes a present or future
duty or obligation on the part of the State, and not
contained in statute or for which appropriations have not
been provided, must expressly provide that the duty or
obligation is subject to appropriation by the Legislature.
Co-Chair Therriault pointed out that the sponsor had
withdrawn the proposed committee substitute. [Copy on
File]. Mr. Pound noted that the proposed amendment would
resolve concerns addressed in the substitute.
Representative Phillips asked if there was anything in the
legislation that called for the election of the Attorney
General. Mr. Pound replied there was not.
In response to a question by Representative J. Davies
regarding "common law", Mr. Pound pointed out a reference on
Page 2, Line 8. He stated that language was changed in the
Senate Judiciary Committee at the request of the Department.
Representative J. Davies commented that was not a
substantive change. Mr. Pound suggested that the amendment
should resolve the problem.
Vice Chair Bunde MOVED to ADOPT Amendment #1, 1-LS1512\G.
[Copy on File]. Representative Bunde OBJECTED for the
purpose of discussion. Mr. Pound stated that Amendment #1
would delete "or that generally . in other states"; and add,
"that pertain to the Office of the Attorney General".
Representative Grussendorf asked the purpose of the
amendment. Mr. Pound explained that the argument was that
the definition of common law refers to the common law of
other states. The question rests in whether Alaska should
base their law on common law dating back from the 17th
century English and applies to other states.
Co-Chair Therriault pointed out that the effect of the
amendment is that Alaska's statutes would govern the duties
of the Attorney General. Mr. Pound agreed. Representative
J. Davies argued that much of state law is based on common
law. If that is the intent of the amendment, he believed it
was misdirected. Common law exists in this country. He
noted that many court decisions are decided on the basis of
what is general practice.
Co-Chair Therriault observed that it would provide a list of
duties. The question is whether the Attorney General would
perform his duties based on other states common law or the
list provided in the legislation.
Representative J. Davies argued that what occurs in the
committee substitute and that is further exasperated through
the amendment is a change to existing statute.
Representative J. Davies noted that he preferred the
existing statutory language.
(TAPE CHANGE, HFC 00 - 131, Side 1)
Vice Chair Bunde noted his concern regarding "common law"
property. He asked what the language was before the House
Judiciary Committee changed it. Mr. Pound replied that the
Legislature should be the ones that define the description.
Representative G. Davis asked if the courts would be able to
continue to use common law, and then the Attorney General
would not have that authority.
DEAN GUANELI, CHIEF ASSISTANT ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW, explained that the Attorney
General's office worked with the House Judiciary Committee
in establishing a committee substitute. He stated that it
adequately strikes a balance between the sponsor's concerns
and the needs of the Department. He noted that it also
addresses the concerns regarding common law authority of the
Attorney General. It is true that over a period of many
years, the judges in other states have developed common
principles about what other attorney generals can do and
what authority they have.
Mr. Guaneli provided Committee members with five examples
where in Alaska, the Department has had to go to the Court
of Appeals and relies on this provision:
? From time to time, there is a conflict in
prosecuting in a particular criminal case. The
attorney general appoints special prosecutors or
independent counsel. There is no statute that
allows the attorney general to appoint those
prosecutors. He noted that recently, the
defendant in a case went to the Court of Appeals
and challenged the attorney general's authority to
do that.
Co-Chair Therriault noted that the federal government allows
that. He asked if there were other places nationally that
allowed it. Mr. Guaneli replied that the Court of Appeals
found that authority usually pertains to the Office of the
Attorney General. He added, it does not flow through
statutes in other states but instead, is where the courts
have found that this is power that the attorney generals
have and that is necessary to carry out their public duties.
? He noted that the second item was when an Attorney
General's office brought an action on behalf of a
number of consumers who had bought land under a
"shady" land deal. The Attorney General brought
that to the Consumer Protection Law and for some
reason the court held that the Consumer Protection
Laws did not apply. The Attorney Generals office
switched theories noting a uniform land sales act
in Alaska. The Supreme Court found that under the
attorney generals common law authority, they had
the power to use a common law fraud action against
the land developer.
? Noted that there are many crimes each year, where
people allege that crimes have been committed in
violation of State law. The Attorney General has
the discretion not to prosecute. The authority
not prosecute comes from the described provision.
Vice Chair Bunde commented that the law was working under
the original verbiage and then it was changed in the House
Judiciary Committee. Mr. Guaneli clarified that
Representative Green had a concern with that language. The
general common law in this country is if the Attorney
Generals states the authority, then it is something that can
be done. Representative Green thought that it would be
appropriate to change the language so that it would not look
like we were doing something not in law.
? Mr. Guaneli noted that in cases where the State is
not a party, the State is asked to file as a
"friend of the court" and the State would have
nothing to do with the litigation.
? The last scenario carries a fiscal impact. The
strict reading of current law represents the State
in which the State is a party. There are a number
of lawsuits that the Attorney General defends, in
which the State is not named, but an employee is.
In the federal civil rights actions, they have to
file against an individual; they can not file
against the State. There is currently, nothing in
statute that would allow the Attorney General to
represent an employee of the State. The
Department believes that is within their general
authority to represent State employees and is
included in many union contracts. The danger is
that if the Attorney General is not allowed to
represent State employees, and then those
employees are sued, they would have to get private
counsel. That could give the litigants some basis
for suing the State later.
Mr. Guaneli pointed out that there is a statute that
stipulates that common law governs in the State of Alaska,
except where it has been specifically over-ridden in
statute. The danger of removing the common law powers of
the Attorney General is that all circumstances will be
"caught" where the Attorney General will need to rely on
some common law authority. He emphasized that the
Department of Law becomes involved in every-kind of case
imaginable and the purposed language would force giving up
important rights and authority of the Attorney General.
Mr. Guaneli added that the Attorney General is not a
constitutional officer, therefore, the Legislature does have
authority to set the powers of the Attorney General. The
Governor is a constitutional officer. He noted that there
is a provision in the Constitution, Article 3, Section 16,
which imposes upon the Governor, the obligation to initiate
legal action to uphold the constitutional laws of the State
of Alaska to protect its' people. The governors do not do
that on their own, but instead, do it through the attorney
general. To take away the powers of the Attorney General
that are necessary to uphold the governor's legal authority
may be beyond the power of the Legislature. He clarified
that if the legislation passes, it will result in more
litigation.
Mr. Guaneli reiterated that the Department is satisfied with
the House Judiciary Committee version of the legislation.
Representative J. Davies asked if generally, the courts had
read the existing statutory language consistently with the
House Judiciary amendment. Mr. Guaneli replied that was the
way that the Courts had interrupted it. Representative J.
Davies noted that a court might ask why the Legislature
changed the language. He commented that the existing
language was clear.
Mr. Guaneli interjected that the wording he had suggested to
the House Judiciary Committee was that "the powers that
usually pertain to the Office of the State Attorney
General". That language is the key for what is generally
necessary for an office of the State Attorney General to
carry out their public protection duties.
Representative Phillips emphasized that the current system
is not broken.
Co-Chair Therriault noted that Amendment #1 was the MOTION
before Committee members.
A roll call vote was taken on the motion.
IN FAVOR: Grussendorf, Phillips, Williams, Bunde, J.
Davies, G. Davis, Foster, Therriault
OPPOSED: -0-
Representative Moses, Representative Austerman and Co-Chair
Mulder were not present for the vote.
The MOTION FAILED (0-8).
Vice Chair Bunde MOVED to ADOPT a conceptual amendment on
Page 2, Lines 8-10, returning the bill to the original
language. Representative G. Davis OBJECTED. He noted
that it had passed the House Judiciary Committee and that
legal counsel had recommended the change.
A roll call vote was taken on the motion.
IN FAVOR: Phillips, Williams, Austerman, Bunde, J.
Davies, Grussendorf
OPPOSED: Foster, G. Davis, Therriault
Representative Moses and Co-Chair Mulder were not present
for the vote.
The MOTION FAILED (6-3).
Representative Foster MOVED to report HCS CS SB 286 (FIN)
out of Committee with individual recommendations and with
the accompanying fiscal note. There being NO OBJECTION, it
was so ordered.
HCS CS SB 286 (FIN) was reported out of Committee with a "no
recommendation" and with a fiscal note by the Department of
Law dated 3/23/00.
MARK JOHNSON, (TESTIFIED VIA TELECONFERENCE), ANCHORAGE,
commented that the fundamental principle that the language
be eliminated from existing law stems from the notion that
the powers of the Attorney General's office stem from the
constitutional statutes of Alaska. He stated, what is
currently in law is an open-ended invitation for the
Attorney General to initiate litigation for a whole array of
subjects.
Mr. Johnson argued that if left as it stands, it would only
be a matter of time before the Department of Law had an
issue that they feel strongly about but that the Legislature
did not support. He stated that he did not support deletion
of the language adopted by the Committee.
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