Legislature(1999 - 2000)

04/20/2000 09:10 AM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
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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