Legislature(1999 - 2000)
04/17/2000 01:26 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 286 - DUTIES AND POWERS OF ATTORNEY GENERAL CHAIRMAN KOTT announced that the final order of business would be COMMITTEE SUBSTITUTE for SENATE BILL 286(JUD), "An Act relating to the duties and powers of the attorney general." Number 1690 JIM POUND, Staff to Senator Taylor, Alaska State Legislature, informed the committee that CSSB 286(JUD) primarily addresses the duties of the attorney general. Specifically, the bill would require the attorney general to defend the Alaska State Constitution, clarify that the duties of the attorney general would be placed in statute and that the legislative power to make appropriations and enact the law restrains and limits the attorney general's authority when settling cases. Mr. Pound offered to entertain any questions. Number 1752 MARK JOHNSON, Attorney, testified via teleconference from Anchorage. He noted that he formerly worked for the legislature. He informed the committee that this legislation grew out of a subcommittee of the Commission on Privatization, which discovered some disturbing things regarding settlement authority. The subcommittee felt that there was a need to balance the statute so that it reflected the extent to which the legislature can and should extend, by statute, the powers of the attorney general to act in certain areas. He noted that he is not an expert on the first element, which was added by Senator Donley. He offered to speak to his letter to Chairman Taylor, Chair of the Senate Judiciary Committee. Mr. Johnson informed the committee that he remains supportive of the legislation and he urged the committee to pass it on. CHAIRMAN KOTT requested that Mr. Johnson speak to the letter. MR. JOHNSON referred the committee to page 2, lines 8-10, of CSSB 286(JUD). The portion that is deleted grew out of a disparity that arose out of the [subcommittee's] research regarding an opinion by the attorney general in connection with the settlement of the Exxon Valdez litigation. The deleted language was believed to be too open-ended and inappropriate for a statutorially created attorney general. He indicated that if the attorney general believes that there are powers essential to the duties of the attorney general, then he/she could come before the legislature and request specific statutory authority to undertake those functions. MR. JOHNSON turned to another change, which was further changed in the Senate Judiciary Committee. He pointed out that currently, there is no provision in statute that addresses the attorney general's authority to settle cases, which is a broad authority and tends to be commensurate with the power to initiate litigation. That authority can include obligations, both financial and otherwise, to the state. Therefore, the final section of CSSB 286(JUD) is an attempt to place a limitation in statute regarding the authority to settle cases. Number 2086 DEAN GUANELI, Chief Assistant Attorney General, Criminal Division, Department of Law, said that he was happy to hear Mr. Pound say that the primary impetus for this legislation was to include the change on page 1, line 5. However, the other two provisions in the legislation are cause [of concern]. He referred to page 2, lines 8-9, which seems to repeal fairly innocuous language. The attorney general has a number of powers under statute; however, legal actions sometimes get very complicated. He pointed out that there are a number of situations in which the attorney general must take action in accordance with the public good, although it may not be specifically provided in statute. Attorneys general across the country find themselves in such a situation, which is not covered in the statute but rather in the common law. He explained that over the years the courts have developed a set of principles that generally go along with the office of the attorney general as that position is the government's primary legal advocate. The attorney general has a responsibility to take certain actions on the public's behalf. MR. GUANELI provided the committee with the following four powers [of the attorney general], which he felt may disappear if this provision were repealed. He noted that three of the four powers are from opinions from the Alaska Supreme Court and the Alaska Court of Appeals. First, a number of years ago there was a matter in which there was a question as to whether the attorney general should prosecute a particular criminal case. The attorney general felt it was appropriate to investigate and prosecute this case. However, this person and their relationship with the administration led the attorney general to feel that there was a conflict in the Department of Law and thus outside counsel was appointed to prosecute that case in the name of the state. However, the defendant challenged the attorney general's authority to [appoint outside counsel to represent the state]. The Alaska Court of Appeals decided that the attorney general derived the authority to appoint [outside/special counsel] from the language which this legislation proposes to repeal. Number 2396 MR. GUANELI turned to the second example of a power of the attorney general that may disappear. He explained that a number of years ago the attorney general's office began a consumer protection action against a land developer, who was engaged in some "less than reputable" dealings. The trial court decided that the consumer protection laws didn't cover that particular conduct and thus the attorney general brought action under the Uniform Land Sales Act. The court decided that [the Uniform Land Sales Act] didn't cover the conduct either. Finally, the trial court allowed the attorney general to bring a common law fraud action, under the attorney general's common law authority, in order to sue the [land developer] on behalf [of the state]. [Mr. Guaneli's testimony was interrupted due to a tape change.] TAPE 00-67, SIDE A MR. GUANELI continued, "... certainly in here -- and there was no provision in current law as it existed then that would've covered that; and the Alaska Supreme Court had to decide, in a ... written opinion, that this particular provision, which is going to be repealed, allowed the attorney general to do that." Number 0080 MR. GUANELI moved on to the third example of a power of the attorney general that may disappear, which he indicated may be surprising. He believed that everyone would probably agree that the attorney general has the authority to decide to prosecute or not prosecute criminal cases. However, there is nothing in state law that specifies that authority but rather the current law says that "The attorney general shall prosecute all cases involving violation of state law, and file information and prosecute all offenses against the revenue laws and other state laws where there is no other provision for their prosecution;". That language specifies a mandatory duty and thus the Alaska Supreme Court had to hold that the attorney general does have the discretion not to prosecute cases or when prosecuted, to dismiss those cases. Again, that [authority] was found in the words that this legislation proposes to repeal. In this particular case, the attorney general had been ordered by a court to prosecute a particular criminal case. This was taken all the way to the [Alaska] Supreme Court in order for the attorney general to have the ability not to prosecute a particular case. He noted that [the ability to not prosecute a particular case] is a common law authority of the attorney general. MR. GUANELI turned to the fourth example of a power of the attorney general that may disappear. He pointed out that there are a number of situations involving cases filed by private litigants or in the criminal arena, cases filed by municipalities. In those cases, the validity of the state law arises and thus the court notifies the state and allows the state to file an amicus brief on behalf of the constitutionality or validity of the state law. Mr. Guaneli said that he didn't see anything in [the legislation] that would allow the attorney general to file at the request of the court in another action in which the state is not a party. This is used fairly regularly in order to uphold the validity of state laws, which he didn't believe is covered in this legislation. Number 0312 MR. GUANELI indicated that these examples illustrate that this legislation has unintended consequences. Furthermore, he believes that as time passes there will be other instances in which the authority of the attorney general is called into question. Mr. Guaneli felt that in order to understand what this proposed change does, a more complete explanation of what [this legislation] does [is required]. Mr. Johnson's testimony does not indicate that this was given much thought. Therefore, he suggested that the Legislative Affairs Agency, or other appropriate entity, should develop research on the committee's behalf in order to determine what powers of the attorney general are being given up and being prevented from use. MR. GUANELI turned to the last part of the bill. He related his belief that there is no particular objection to the notion that what the attorney general does in settling agreements is subject to the laws that the legislature enacts or its appropriation power. However, he expressed concern with the last clause of this legislation, which reads as follows: "...in which the attorney general represents the state and in which the state is a party." He explained that the language means that [the attorney general] can only take those cases and act in those cases in which the state is a party. However, there is a lot of litigation that the attorney general undertakes in which the State of Alaska is not a party. Mr. Guaneli believes that this legislation leaves the attorney general to only represent the state. He pointed out that many lawsuits make allegations against state employees, as individuals. Under the federal civil rights statute, 42 U.S.C. 1983, one can only sue someone as an individual. Therefore, most of the actions in prison litigation are federal civil rights actions under 42 U.S.C. 1983 and all of the defendants are individual correctional officers or superintendents who are alleged to have violated someone's rights. Currently, the Office of the Attorney General represents those people. If these provisions [in this legislation] go through and the attorneys general common law is called into question, the attorney general may not be able to represent those individuals. Furthermore, he suspected that most union contracts for state employees have a provision requiring the state to defend and indemnify state employees who get sued in the course of their employment. Mr. Guaneli specified that the changes [encompassed in this legislation] would prevent the attorney general's office from representing individual state employees and thus force them to hire private counsel. Once those cases are settled, the state would be presented with those bills as well as a bill for attorney's fees. In such a case, there is also the danger to point fingers at the employer, agency or supervisor that forced [the action in question], which becomes a "field day" for the plaintiffs because of the multiple litigation possibilities. However, when the attorney general's office handles the entire case the parties are kept more friendly in order to avoid such a situation. MR. GUANELI reiterated his belief that this legislation has some serious unintended consequences that deserve more study. He recommended leaving in the language on page 2, lines 8-9, and deleting the language on page 2, lines 19-20. He also recommended that Section 2(d) end with the word "section" on page 2, line 19. With those changes, he didn't believe that [the Office of the Attorney General] would have any objection to the legislation. Furthermore, those changes would avoid the aforementioned consequences that could undergo further study. Number 0751 REPRESENTATIVE KERTTULA surmised, from Mr. Johnson's information, that this legislation could result in departments suing each other, which occurs in other states. She asked if that could happen with this legislation. MR. GUANELI said that such a situation is possible; however, he felt that such a situation is more likely with lawsuits against employees versus agencies. He informed the committee that there is case law in Alaska that says that employees of the state are not arms of the state and thus the defenses that the state can arise only apply to the state and not its employees. Therefore, the split is probably between the state and its employees and less likely between agencies. REPRESENTATIVE KERTTULA remarked that although it is not that clear in the language, it is of concern for her. REPRESENTATIVE GREEN recalled Mr. Guaneli's reference to common law. He asked if it is the case that often common law is superseded with specific laws. MR. GUANELI answered that in many states where the common law is not clear, the trend has been to supersede the common law by statute. He explained that often it is not that easy to define the common law for the country as different states have different common laws. Therefore, many legislatures pass statutes for particular problems in order to be clear and avoid having to review old court opinions. However, in the legal field when one comes across something new or something that one hasn't anticipated, then it helps to look to the common law in order to determine how the courts have treated similar situations. If the common law is completely excluded, then [everyone] would be deprived of something that is valuable in those situations that are not covered by statute, which would be unfortunate. Number 1009 MR. JOHNSON expressed surprise that Mr. Guaneli would be mentioning that the issue would need further study. In regard to the Breeze case cited by Mr. Guaneli, Mr. Johnson pointed out that the legislature has the ability to legislate in the fraud area as was done in the circumstances presented by the Breeze case. The same is also true of the land fraud case discussed by Mr. Guaneli. In regard to Mr. Guaneli's third example involving prosecutorial discretion, Mr. Johnson said, "I'm not sure how actual that is." He stated that the power to bring cases included the power not to bring cases. Therefore, he didn't believe that a clarification to the statute would be difficult to write in. Furthermore, the amicus briefs would also be equally easy to frame within the statutes. He indicated that the difference is a matter of perspective. Mr. Johnson said, "If you want to maintain open-ended powers for the attorney general and the Department of Law to shelf, you know, a couple hundred years of legal history and through 51 jurisdictions through the common law and proceed in that manner, I guess that's a matter for legislative judgment." MR. JOHNSON informed the committee that the subcommittee for the Commission on Privatization was partially motivated by U.S. Attorney General Cole's 1991 opinion regarding the attorney general's settlement authority. That opinion suggested that the legislature didn't have the power to limit the attorney general's common law powers. The case that stood behind that statement inaccurately represented the law of Maryland. He referred to the Goldberg v. State case [Maryland Appellate Court, Decision 1987]. That case talked about the duties and powers of the state's attorney, which ought to be derived from the constitution and legislative enactments. Mr. Johnson felt that was central for legislative consideration here. If one believes that there should be limited and constitutionally based government, then this open-ended provision in statute is inappropriate. Furthermore, Mr. Johnson didn't believe that the solutions are as difficult as Mr. Guaneli suggests. CHAIRMAN KOTT asked if anyone else would like to testify. There being no one, public testimony was closed. Number 1214 REPRESENTATIVE MURKOWSKI remarked that she wasn't sure what is being given up. She recalled Mr. Guaneli asking the question: what are we eliminating and what common law powers of attorneys general in other states would no longer be available? She noted that question had not been answered. Representative Murkowski indicated that she was not sure about giving up something when she wasn't sure what she was giving up. CHAIRMAN KOTT recalled that Mr. Johnson pointed out that the attorney general's powers should be [and is] derived from the constitution and legislative enactments. REPRESENTATIVE GREEN referred to page 2, line 9, " ... IN A STATE]" and asked if there is a possibility that there could be conflicting laws due to 49 other attorneys general doing things in their states. Does the picking and choosing create a possible problem? MR. GUANELI said: The way that I would interpret this ... is not necessarily that the attorney general could or that the courts, who would ultimately rule on whether the attorney general has this authority would be saying as long as we can find one state that does it, that that's enough. ...I think the clause here is the that all hangs together as one is "OFFICE OF ATTORNEY GENERAL IN A STATE". MR. GUANELI said he believes that what we are looking for is regarding the general American common law that usually pertains to the office of a state attorney general. Under American jurisprudence, the office of a state attorney general usually comes with certain authority that revolves around taking necessary and proper actions to preserve the public interest and protect the public. He related his belief that the aforementioned language really refers to a state attorney general. He didn't believe it is proper to merely say that if one state does it, that [Alaska] can do it. Rather, he believes that this is a power that the courts in the country generally recognize as usually pertaining to the office of a state attorney general. REPRESENTATIVE GREEN commented that [such an interpretation] makes quite a difference. MR. GUANELI acknowledged [that his interpretation makes quite a difference]. He didn't believe that [the department] would have any objection to changing the language to refer to the office of a state attorney general. REPRESENTATIVE CROFT said that the word "generally" would be more appropriate than "USUALLY". MR. GUANELI indicated that [the department] wouldn't object to that. CHAIRMAN KOTT asked if there has ever been a case that reached the highest court in the state and overturned the duty of a previous or existing attorney general. Number 1468 JIM BALDWIN, Assistant Attorney General, Governmental Affairs Section, Civil Division (Juneau), Department of Law, informed the committee that there was an U.S. Supreme Court decision that by dissent decree invalidated a statute in a federal case. The Alaska Supreme Court ruled that [the department] didn't have the power to do that. CHAIRMAN KOTT recalled that there is an association of attorney generals around the state. He asked if there is a document that generically defines the powers and duties of the attorneys general as they see it. MR. GUANELI answered that there is a publication on the office of the attorney general and that publication includes a chapter on common law powers of the attorney general. He indicated that he is reviewing that publication and it doesn't really set out, with any completeness, what all the common law powers are. However, he believes that some general principles can be derived from that publication. Mr. Guaneli informed the committee that the tenor of that publication, which is from the National Association of Attorneys General, is that the common law is necessary in order for attorneys general to perform their job. He noted that the publication is not intended to be a definitive work on the subject. REPRESENTATIVE GREEN asked if, as the common law has unfolded, different states have followed different paths relating to a common law that may not relate to a state statute. MR. GUANELI responded that Representative Green's question is difficult to answer. He understood the question to be regarding whether different states have come to different conclusions regarding what the English common law holds. In response to the question, Mr. Guaneli said that generally the states are consistent, but probably differ in regard to a specific set of facts. Therefore, some changes [to the legislation] might be appropriate. CHAIRMAN KOTT asked if there were further questions for Mr. Guaneli. There being none, he asked if there was further discussion. REPRESENTATIVE GREEN moved that the committee adopt conceptual Amendment 1, which would delete on page 2, line 9, "USUALLY PERTAIN TO THE OFFICE OF ATTORNEY GENERAL IN A STATE]" and insert "generally pertain to the office of other state attorneys general". He explained that he is attempting to incorporate Mr. Guaneli's concept of flexibility for the attorney general without necessarily giving him/her authority to pick and choose specific [duties] that only one state does. CHAIRMAN KOTT interpreted the conceptual amendment to mean, then, that Alaska would not allow its attorney general to do something that is tailored to Alaska and not done elsewhere. REPRESENTATIVE GREEN replied yes, at least generally because there may be some instances where three states follow one path and the other 46 follow another path. He expected our state to go along with the [majority]. CHAIRMAN KOTT asked if there was objection to the conceptual amendment, Amendment 1. There being none, Amendment 1 was adopted. Number 1793 REPRESENTATIVE MURKOWSKI referred to page 2, lines 19-20, and recalled that it would appear that one wouldn't want to exclude the attorney general's ability to take on the individuals. Therefore, Representative Murkowski moved that the committee adopt Amendment 2 which would delete, on page 2, all the language after the word "section" on line 19. There being no objection, Amendment 2 was adopted. Number 1871 REPRESENTATIVE GREEN moved that the committee report CSSB 286(JUD), as amended, out of committee with individual recommendations and an indeterminate fiscal note. There being no objection, HCS CSSB 286(JUD), was reported from the House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|