Legislature(1997 - 1998)
02/26/1997 01:40 PM Senate JUD
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SJR 10 ELECTION OF ATTORNEY GENERAL
TUCKERMAN BABCOCK , legislative aide to Senator Green, sponsor of
SJR 10, told committee members he was awaiting a draft committee
substitute to propose for the committee's consideration, as well as
several amendments suggested by Mr. Chenoweth of the Division of
Legal Services.
Number 280
JIM BALDWIN , Assistant Attorney General, noted he asked Judge
Stewart and Judge Buckalew, delegates to the Constitutional
Convention, to address the committee on the constitutional debate
on the election of the attorney general. He also provided, to
committee members, a full transcript of the debate at the 1956
Convention about whether to establish positions of an attorney
general and secretary of state in Alaska. He highlighted other
aspects of the memorandum he sent to committee members in the
following testimony.
MR. BALDWIN stated the fiscal note is speculative and reflects the
way the resolution was drafted. The biggest cost item stems from
the fact the Attorney General's Office would be required to provide
legal representation for all public corporations of the State,
including the University of Alaska and the Alaska Railroad
Corporation. To estimate costs, he spoke to officials in
Washington State to determine how things might operate in Alaska if
the attorney general is elected. SJR 10 proposes the attorney
general share the general election ticket with the governor and
lieutenant governor, however that does not prevent some differences
of opinion between the individuals involved. In Washington State,
some very closely held executive functions, now exercised by the
attorney general on behalf of the Governor, such as bill drafting
and clemency matters, have devolved upon an in-house counsel in the
Governor's Office. The standard cost of a senior level attorney is
about $150,000, including support and benefits. If this kind of
situation was to be further multiplied because other principal
department heads had philosophical differences with the attorney
general, the cost would increase substantially. Also, several cost
items are not reflected in the fiscal note because they cannot be
quantified.
MR. BALDWIN pointed out the attorney general would be responsible
for not only civil and criminal matters under SJR 10, but also
infractions and violations. Currently, that function is delegated
to lay personnel in other departments. If district attorneys had
to represent the State in those matters, a tremendous expense would
be incurred. In summary, Mr. Baldwin stated the Department of Law
does not support SJR 10.
JUDGE THOMAS STEWART gave the following testimony.
JUDGE STEWART: Gentleman, this is a subject that I've contemplated
and been concerned about for at least 50 years and in the
course of that time I have become adamantly opposed to the
idea of electing the attorney general. In order to express
adequately my views, it's desirable to go back to the very
roots of the scheme of American government, both state and
national: the idea of three separate branches with checks and
balances among and between them. I propose to address the
subject at several levels: the basic theory; Alaskan
governmental history; personal and practical experience with
the alternative systems; leading opinions of prominent
students of the subject; observation on consequences of such
a scheme; explanations of examples from other states; and
miscellaneous observations.
The basic theory is set out in The Federalist, in the papers
written by Alexander Hamilton, primarily No. 70, dated March
18, 1788.
"There is an idea, which is not without its advocates,
that a vigorous executive is inconsistent with the genius
of republican government. The enlightened well wishers
to this species of government must at least hope that the
supposition is destitute in foundation; since they can
never admit its trials without at the same time admitting
condemnation of their own principles...."
It is worth noting that word "republican" with a small "r".
Ours is a government of representatives, not a true democracy,
which would be like a New England town meeting, where all the
townspeople gather to discuss and vote on the issues.
Obviously, this is not possible at the national level, nor in
large cities, nor in the whole State of Alaska. The critical
complex decision, such as on the structure of the executive
branch, must be made by the representatives of the people, and
that is you. (Judge Stewart continued reading from The
Federalist.)
"...Energy in the executive is a leading character in the
definition of good government. It is essential to the
protection of the community against foreign attacks: it
is not less essential to the steady administration of the
laws, to the protection of property against those
irregular and high-handed combinations, which sometimes
interrupt the ordinary course of justice, to the security
of liberty against the enterprises and assaults of
ambition, of faction and of anarchy.
A feeble executive implies a feeble execution of the
government. A feeble execution is but another phrase for
a bad execution: and a government ill executed, whatever
it may be in theory, must be in practice a bad
government.
The ingredients which constitute energy in the executive
are unity - duration - and adequate provision for its
support - competent powers. The ingredients which
constitute safety in the republican sense are, a due
dependence on the people - a due responsibility.
Those politicians and statesmen, who have been the most
celebrated for the soundness of their principles, and for
the justness of their views, have declared in favor of a
single executive and a numerous legislative. They have
with great propriety considered energy as the most
necessary qualification of the former, and have regarded
this as most applicable to power in a single hand; while
they have with equal propriety considered the latter as
best adapted to deliberation and wisdom, and best
calculated to conciliate the confidence of the people,
and to secure their privileges and interests.
This unity may be destroyed in two ways; either by
vesting the power in two or more magistrates of equal
dignity and authority; or by vesting it ostensibly in one
man, subject in whole or in part to the control and
cooperation of others, in the capacity of counsellors, to
him. Of the first, the two counsels of Rome may serve as
an example; of the last we shall find examples in the
constitutions of several of the states."
The Constitutional Convention delegates debated this issue
intensely. It was the single focus of the committee on the
executive branch. In addition, the full Convention itself
intensely scrutinized it for at least one full day. Committee
debates during the Convention could not be recorded, therefore
Mr. Baldwin's transcript is of the debate by the full
Convention. The delegates were lead by George McLaughlin who
said:
"The blunt fact is that there is a general misconception
as to the function of the attorney general. The attorney
general is a lawyer and his opinion is the equivalent of
any other lawyer's. It can be attacked. Any
recommendation he makes, if acted upon, can always be
attacked in the courts by private citizens. His opinion
is barely worth the paper it is written upon. It's
impressive upon the state and the officials are bound by
it until some irate taxpayer attacks it and the actions
taken under the authority of it, and the courts can
promptly overrule it."
The concept of an attorney general's opinion must not be
confused with a judicial opinion. A judicial opinion covers
two sides - and reviews adversarial treatment of an issue, and
is binding. That does not happen in an AG's opinion - no one
is bound by an attorney general's opinion.
There is a good example of the exercise of energy by the
Governor. Alaska spent millions pursuing tax claims against
oil companies. Governor Hickel and Attorney General Cole
settled those cases through an energetic exercise of
authority. That kind of energy would be frustrated if the two
positions were at odds. The decision to settle was a policy
decision, and a loyal attorney general executed it for the
Governor.
The Governor is the person charged by the people to fix and
carry out state policy. The Governor is accountable to the
people. An elected attorney general could undercut the
Governor and hinder his ability to execute policy. If an
attorney general cannot support the governor's policy, he must
resign.
There are many authorities opposed to electing the attorney
general. Thomas Dewey, a friend of Ernest Gruening, was
defeated by Harry Truman in 1948. He came to Alaska to visit
Gruening and knew statehood was sought. His advice was, from
his experience as Governor of New York, "Whatever you do, do
not elect the attorney general." Jay Hammond is adamantly
opposed to the election of the attorney general. Recently, he
was my houseguest for several days, and we discussed this
matter. He said that although he was a Republican, he
appointed Av Gross, a Democrat, as Attorney General, knowing
of his abilities. Republicans objected, but Gross was one of
the best of the attorneys general.
There is a good analogy. A corporation, such as IBM, hires a
CEO to fix and carry out the policies of the Board of
Directors. The CEO can be likened to the Governor, while the
Board of Directors to the Legislature, and the stockholders to
the general public. If the chief counsel to the CEO were to
be elected by the stockholders, it wouldn't work because
stockholders are simply not able to determine who should be in
that position. We have this big enterprise of the State. To
have its chief counsel elected by thousands upon thousands of
people who can't possibly know the merits of the individual
candidates for elected attorney general could not possibly be
a reliable determinant of who ought to be the Governor's
counsel.
I hear it said, "But there are 40 states that elect the
Attorney General." In order to understand that, we need to
look at history. Those provisions were put there in the 19th
Century. It may be that there are one or two in the early
part of the 20th Century, but the modern Constitutions of the
20th Century do not do that, because they have the benefit of
hindsight and saw the problems that evolved from this kind of
a governmental structure. Probably the leading Constitutional
Convention was that of New Jersey, which I think was in 1946,
and New Jersey did exactly what we subsequently did, and
structured an executive branch with a single unified head who
can choose who should be his associates and who then is held
accountable, responsible to the electorate for what he does.
As I said earlier, it's a mistaken notion somehow of democracy
- that somehow the people are going to get a representation
that is more democratic - small "d" - if they elect the
attorney general. Believe me, it's not so. That's a failure
to understand the role of the attorney general. Citizens from
the street can't go in and ask the attorney general for an
opinion. He would say, "That's not my job." Surely, he
represents the people but he only does that through his boss,
the Governor, who likewise represents the people, more broadly
than he does.
There's another aspect to it. If you elect the attorney
general, that cuts across the entire spectrum of the executive
branch. It affects the opinions that are given to each and
every department, each and every functionary in the executive
branch. When I was an assistant attorney general - there were
two of us at the time - a gentleman named John Dimond and I
were the assistant attorneys general. And we saw our boss, J.
Gerald Williams, interpose his own policy ideas, inject them
into the operations of the departments he was giving advice
to, without any regard for what the Governor's ideas might be
on that subject. Such a person is just as likely to adopt his
own ideas, his own philosophy, and be no more representative
of the people than the Governor is.
There's a corollary to this that I don't know whether you've
ever looked at. The history of Alaska, the government of
Alaska, has been that the Legislature looks to the Attorney
General for opinions. I'm here to suggest to you that that's
wrong. You should have your own counsel. The Senate should
have its own counsel; the House should have its own counsel,
because sometimes the ideas of the Senate and the ideas of the
House are not commensurate. You need independent legal
advice. You should not be looking to the opinions of the
attorney general as your authority on the law that you want to
deal with. Even if you don't create a full time position,
even if you only had contract counsel, you should have counsel
whose loyalty is to you as his client. Any of you that have
reason to consult with attorneys know that your attorney must
be loyal to you, and this proposition, this SJR 10, would
render the Governor having an attorney who is not loyal to
him, and that simply doesn't work. It would be, in my view,
one of the single most damaging things that you could possibly
do to the structure of our state government, which I think has
been highly successful since we became a state in 1959. That
would be disrupted forever.
It's not the kind of a proposition you can put out to the
people. We have a republican form of government. It's your
responsibility to make this decision. It's the kind of thing,
maybe I have suggested to you, the degree of sophistication,
historical knowledge, philosophical concepts, if you will,
that are required to penetrate this maze, to get beyond that
simplistic, naive statement: the attorney general represents
the people. Surely he does, but through the medium of his
governor, not directly. This kind of a proposition, as I say,
put out to the voters at large; how can you adequately explain
it? The newspapers wouldn't do it for you. The Anchorage
Times had an editorial on this proposition about three weeks
ago and I read it, and I became immediately, deeply concerned.
It's come up not infrequently over the last 35 years.
I happened to get well acquainted with a gentleman named Bill
Allen, who is the CEO of VECO, also the owner of the Anchorage
Times. I called - (I sat with him through several days of
meetings on the Governor's Advisory Task Force on Tort Reform
during the fall). I had never known him before but I got
acquainted with him, so I called him and said, "Bill, I need
to talk with you about this editorial. I think that you may
not really understand all of the implications of what's being
proposed." And so I have an appointment to sit down with him
next Monday. I hope to enlighten him a little bit on all
that's involved here.
There's another danger, and having sat, as you people do, on
a legislative committee, I'm extremely sensitive of it, and
aware of it. This proposition goes to the very heart of the
structure of our government. You cannot possibly adequately
consider it (unless you reject it, as I hope you do) in the
course of an afternoon, in the course of listening to two or
three bozos like me. You cannot just talk about it. It
requires careful thought and study.
Let me divert for a moment. About four years ago, a little
more than four years ago, there was a proposition put before
the Legislature, to amend the Constitution by the initiative.
This, likewise, was deeply disturbing to me because
initiatives do not get the crucible of treatment that you
people are able to give to legislative measures. You get bad
law from the initiatives. You get bad constitutional
amendments. Look at the Budget Reserve amendment. Have you
tried to read that and make sense of its language? That's the
kind of thing that emanates from inadequate, surface treatment
of this kind of a subject. Ramona Barnes was the Speaker at
the time that was introduced, and she asked Gail Phillips, and
me, and a gentleman from Anchorage named Ken Jacobus, and Fran
Ulmer, who was the Minority Leader of the House at the time,
and I think there was maybe one other person, to sit on a
committee to advise the Legislature what they should do about
this proposal to amend the Constitution by the initiative.
And we spent - this committee spent - a lot of time
considering that, and we came up with a recommendation. I'm
not suggesting that you take up that subject again, but I do
think that you might be interested in the recommendation that
we made, and that is that if there is a proposition like this,
seriously to amend the constitution, that it should never be
acted upon by the first session of the Legislature. It should
be referred to, if you will, an ad hoc committee, or maybe a
standing committee if you want, to consider in the interim,
between the two sessions. Take it to the public, study it,
scrutinize it in depth. Don't act upon it until the second
session of the Legislature. If you have inclination to move
this forward, and I hope you don't, I would suggest that you
consider that kind of an approach in order that it get truly
in-depth consideration and treatment before you willy-nilly go
into restructuring what I think has been a pretty successful
state government.
I've talked too long, but I hope, maybe, I might have given
some insight that might not ordinarily appear to the people
that, I think, are making a shallow motion, here, as it were -
- haven't really looked into what the history has been. Can
you imagine the uproar that would occur if it were proposed on
the national level - to elect the attorney general of the
United States - to the President - an attorney that was not
loyal to his program? There's no more reason to elect our
attorney general than there is to elect the Attorney General
of the United States. When Hamilton wrote what I quoted to
you, and I think it's well worth your time to read The
Federalist paper #70, if you really want to understand the
concepts that went into this. The sound foundation for our
executive branch was laid. We should not abandon it. Thank
you.
SENATOR TAYLOR: Thank you Judge Stewart, I appreciate you being
here. I know, because you and I have discussed this many
times in the past, your comments and thoughts have always
been, and are, mine on this subject, and I know you were
disappointed to see my name there as a co-sponsor. And I
share the reverence that you have for the framework of our
government and the work that our forefathers put into it, and
you specifically put into it. However, Judge Stewart, in my
wildest dreams, I never would have conceived of electing a
governor, who by slight of hand, would prevent a Legislature
from exercising its power of confirmation. That's another
significant power that we have over the Governor's selection
of an attorney general, and that did occur. And then to
watch, and have that Attorney General appear before both joint
house and senate committees, and individual committees, and
admit that cases significant to the organic base of this
State, the very Constitution that protects him, and the
Attorney General, and to admit that those cases were
dismissed, or claims not brought solely for political
purposes, so motivated me that I introduced legislation over
the last two years to create what I called a Constitutional
Defense Council - a group of people, that when and if the
Governor and his Attorney General abandon our State
Constitution, that they could step in and act to protect that
document. I figure that was kind of a halfway ground, at
least, that might pick up, what I would hope would be rare
instances. And I submit to you that this measure will do the
damage that you are suggesting. I don't doubt that, but our
constitutional framework in this State, in my opinion, all of
that hard work that was done, and all of its predecessors,
were based upon an assumption that the people who occupied
that position would have integrity toward the office and the
Constitution they were sworn to protect. You made reference
to a statement that an Attorney General, finding himself in a
compromising position between the Constitution and his
Governor, should resign. And I submit to you that's correct.
People of integrity would resign rather than dismiss cases for
political purposes. Instead, I find today our Constitution is
being used as a shield and a mirror in what appears to be a
tragic game of smoke and mirrors where the Governor hides
behind the AG and the AG hides behind the law. As a former
attorney general told me, specifically, he said the current
Attorney General loves his job more than he loves the
Constitution and that frightens me greatly. I remember
arguing these points with Dick Randolph, who almost 20 years
ago, was trumpeting around the State with basically the same
concept and I was going out front and carrying some of the
same arguments that you've carried so beautifully before the
committee today. But for those actions, I would never even
have contemplated this desperate step because I consider it a
very desperate step. And yet, to suggest that this Governor
and this Attorney General will somehow be held accountable -
I don't know how much more of our constitutional framework we
can afford to have sold down the drain in one federal court
case after another or how much of it will even be retrievable
by the next Administration. How many of these decisions will
become precedent against our State as we attempt to exercise
the very same framework of concepts that we had. There was
testimony given by this Governor before bodies of Congress in
just the last year where he pledged that he would not bring
any suit against Congress should they destroy the 90/10 split
- one of the most organic concepts that this State was based
upon in its relationship with the federal government. How
long could you allow that forfeiting of that exercise of this
State's rights to go on before [indisc.] is attached, before
precedent is developed to the extent where no future governor
could ever go back and revisit that and attempt to protect the
future heritage of the State? I don't know - I don't know the
answers to those questions. I consider this desperate action.
I really do, and I keep in mind your comments and I really
thank you so much for taking the time you have today to bring
those words to us because I don't do this, or don't suggest
this form of legislation lightly, but I am fearful of where we
will be without it should we ever elect similar people to
office.
JUDGE STEWART: I can't argue with you about the particular cases.
I'm not familiar with them. I'm surprised if there weren't
some judicial remedy, if indeed the Attorney General, or the
Governor, is violating those constitutional concepts.
SENATOR TAYLOR: I think there is, but I think the only judicial
remedy that is left at this point is also a desperate act, and
that would be impeachment.
JUDGE STEWART: And then I would say if you were to do this, this
carries on...
SENATOR TAYLOR: much longer than an impeachment would - I
appreciate it.
JUDGE STEWART: I'd be glad to answer any questions if ...
SENATOR TAYLOR: Are there any questions? Yes, Senator Parnell...
SENATOR PARNELL: I think I just would join you and speak for the
committee in saying that you have provided some of the most
thoughtful and most clear testimony of anybody I've ever heard
in these committee rooms and I just want to say thank you and
we appreciate hearing you.
JUDGE STEWART: I appreciate your consideration.
SENATOR TAYLOR: We have another very dear old friend of the law on
the line - Judge Buckalew - you've been very patient.
JUDGE BUCKALEW: I have nothing to add. Tom Stewart did a
magnificent job, he's a real scholar and I'm perfectly
satisfied with the record as is, and I can't improve on it,
and I'm overparked. It's nice hearing from you, Tom. That
was a great job.
SENATOR TAYLOR: Seeborn, you run and catch your car and thank you
ever so much and appreciate those good comments. Tuckerman,
you are batting clean-up, I guess at this point. That's the
only other witness I had. Did you ...
SENATOR MILLER: It's kind of like following a kid's act or an
animal act - you don't win.
CHAIRMAN TAYLOR: It's my understanding you had some amendments
being prepared. Did they arrive?
MR. BABCOCK: Yes, Mr. Chairman, they did, and I gave to your staff
the amendments that are incorporated what might be considered
as a committee substitute, should the committee so desire.
CHAIRMAN TAYLOR: If you wouldn't mind, what I would like to do at
this time is, I will hold the bill until a future hearing -
hopefully after we return from this five-day recess we'll
bring you up first. By that time we can have a committee
substitute prepared that you can work on staff with, and then
go through those amendments with us and we can provide for
further discussion because I realize that you were hit with a
pretty good load there today and I want to give you a chance
to respond or bring in such witnesses as you want to respond
to that.
MR. BABCOCK: Thank you Mr. Chairman. I certainly appreciate the
testimony from such an honorable and venerable Alaskan as
Judge Stewart and I am in no hurry - Senator Green is in no
hurry to have this committee act injudiciously, or more
quickly than necessary so I appreciate the added time to
discuss with the committee, and with committee staff, the
proposed amendments to this constitutional amendment.
There being no further testimony on SJR 10, CHAIRMAN TAYLOR
announced SJR 10 would be held in committee until further notice.
The committee took a brief recess.
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