Legislature(2013 - 2014)CAPITOL 120
03/14/2014 01:00 PM House JUDICIARY
Audio | Topic |
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Start | |
HJR18 | |
HJR33 | |
HB127 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
+ | HB 127 | TELECONFERENCED | |
+ | TELECONFERENCED | ||
+= | HJR 18 | TELECONFERENCED | |
+= | HB 205 | TELECONFERENCED | |
+= | HJR 33 | TELECONFERENCED | |
HJR 18-CONST. AM: ELECTED ATTORNEY GENERAL 1:12:22 PM CHAIR KELLER announced that the first order of business would be HJR 18, Proposing amendments to the Constitution of the State of Alaska relating to the office of attorney general. 1:12:55 PM REPRESENTATIVE GRUENBERG requested that testifiers be allowed to speak as amendments are offered. 1:13:27 PM CHAIR KELLER closed public testimony. 1:14:06 PM [Due to technical difficulties, there is no audio from 1:14:09- 1:14:19, 1:14:28-1:14:44.] 1:14:45 PM REPRESENTATIVE LEDOUX moved to adopt Amendment 1 to HJR 18, labeled 28-LS1216\A.3, Bullard, 3/12/14, which read: Page 1, line 16: Delete "not" Page 2, line 1: Delete "unless the person meets the qualifications for a superior court judge" Insert "if the person is licensed to practice law in the State" 1:15:43 PM REPRESENTATIVE GRUENBERG objected. 1:15:54 PM REPRESENTATIVE LEDOUX referred to page 1, line 16, through page 2, line 1, which read: "A person is not eligible to serve as attorney general unless the person meets the qualifications for a superior court judge." She explained that Amendment 1 allows an individual to serve as attorney general if he/she is "licensed to practice law in the State." She noted the sponsor considers Amendment 1 a friendly amendment. REPRESENTATIVE GRUENBERG maintained his objection. 1:16:52 PM REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, prime sponsor of HJR 18, indicated his agreement that Amendment 1 is a friendly amendment and is an attempt to improve HJR 18. He opined that there was confusion regarding qualifications of a superior court judge as some thought it would invite the Alaska Judicial Council process. For the most part, he opined that the qualifications and experience are adequate and is certainly higher than for other important offices. An [attorney general] must be 30 years old, a citizen of the United States, have lived in Alaska 7 years, and not be a felon. Alaska's chief executive has a much lower threshold and has the judgment to appoint the attorney general, he pointed out. 1:18:36 PM CHAIR KELLER clarified that Amendment 1 removes the word "not" on page 1, line [16], and changes the qualifications for attorney general to be "licensed to practice law in the State." Whereas the original language required the qualifications be that of a superior court judge. 1:19:10 PM REPRESENTATIVE LYNN surmised that if the committee adopts Amendment 1, any individual licensed to practice law in Alaska could be elected attorney general with the vote of the people. REPRESENTATIVES STOLTZE and LEDOUX responded "yes." REPRESENTATIVE LYNN related his understanding that within the current structure the governor has the opportunity to vet the qualifications of whoever he/she might appoint as attorney general. However, voters do not have the same opportunities to interview or compare applicants [as the governor]. Therefore, he suggested there should be a higher standard. He then stated his opposition to Amendment 1. 1:20:17 PM REPRESENTATIVE LEDOUX responded that is the whole idea of voting during an election. She questioned whether Representative Lynn is not supporting Amendment 1 because he doesn't trust the people to vet the attorney general. If so, she noted it appears he wouldn't support HJR 18 in its entirety. She opined that either Representative Lynn believes people are capable of vetting the attorney general through the election process or not. She indicated the only other alternative would be for the Alaska Judicial Council to determine which candidate is qualified and only those people could run for the office of attorney general. 1:21:18 PM CHAIR KELLER inquired as to the qualifications for a superior court judge. 1:22:14 PM REPRESENTATIVE STOLTZE expressed that his personal reason for sponsoring HJR 18 is the potential for the Alaska Judicial Council to insert itself in the process. 1:22:38 PM CHAIR KELLER read from information provided by his staff, "The judge of the superior court shall be a citizen of the United States and of the state, a resident of the state for five years preceding appointment, have been engaged for not less than five years immediately preceding the appointment in the act of the practice of law but need not be licensed to practice law in any of the United States, and the act of practice of law shall be as defined for Justices of the Supreme Court." He opined that there is a difference. 1:23:36 PM REPRESENTATIVE STOLTZE conveyed that when the governor appointed Attorney General Renkes he was not admitted to the bar at the time and had to scurry to obtain his credentials after being appointed. Representative Stoltze remarked he was not certain it was a legal requirement as it may have been more of a political requirement. However, an attorney general would have had to have a license to appear before the Alaska Supreme Court, and yet a governor made an appointment of someone without a current Alaska Bar Association License. More protection is provided under HJR 18 than the current system, he opined. 1:23:53 PM REPRESENTATIVE KELLER announced that Representative Gruenberg removed his objection, but Representative Lynn had not removed his objection. 1:24:56 PM REPRESENTATIVE GRUENBERG remarked the language in Amendment 1 is unclear in terms of the term "qualifications" on page 2, line 1, as it could mean the statutory qualifications or going through the Alaska Judicial Council. He pointed out that an individual cannot become a superior court judge unless nominated by the Alaska Judicial Council, which he said he did not believe is the intent of HJR 18. He then noted his opposition to Amendment 1 for the aforementioned reasons. If the attorney general is to be elected, he opined that it is better for the individual to meet the qualifications of a [superior court] judge. He related a scenario wherein an individual could practice law but work for Legislative Legal Services under a temporary license, or an individual could have been a federal official, quasi-official, or even a bankruptcy judge who was not a member of the Alaska Bar Association. He surmised Representative Stoltze's intent is for an attorney general to meet statutory qualifications rather than going through the Alaska Judicial Council. REPRESENTATIVE STOLTZE responded the whole point of HJR 18 is to not have the governor, or the Alaska Judicial Council, or the Alaska Bar Association [involved], but to give the [vote on the attorney general] to the people of Alaska. He admitted he may have been careless with the use of the original language, but is concerned whenever there is an invitation for the Alaska Bar Association to get between the people of Alaska. 1:28:49 PM REPRESENTATIVE LEDOUX advised that under AS 22.05.070 Qualification of [Justices for the Supreme Court], that former Attorney General Dan Sullivan would not have qualified as being in the active practice of law or anyone who is in an elective office. She remarked that she trusts the people and whatever candidate has qualifications will come out in the election process. 1:29:39 PM REPRESENTATIVE GRUENBERG advised that AS 22.10.090, [Qualification of Judges of the Superior Court] includes the language "... be licensed to practice law in this state." If the committee is reviewing the language analytically and it is left up to the people, he questioned why the attorney general should have to have a license to practice in Alaska. He clarified that he was putting up "sidebars" on the argument that not just anyone can be the attorney general, as they must at least be licensed to practice law. 1:31:30 PM REPRESENTATIVE LYNN questioned if a person could be fully qualified to be a superior court judge, but not necessarily nominated. REPRESENTATIVE LEDOUX responded "yes." REPRESENTATIVE STOLTZE stated that many qualified people get cut off during the nominee stage, which is a central part of this discussion. 1:32:49 PM REPRESENTATIVE PRUITT questioned whether the [attorney general] qualifications should be attached to the statute, which can be changed by 21, 11, a majority vote in the House and Senate respectively, and the governor. If the intent is for the [attorney general] to be "licensed to practice law in the state" and that is the extent of it, then perhaps that's it rather than tying it to a statute that has the possibility of being changed. Therefore, he opined that the language should be clear regarding the qualifications. 1:34:03 PM REPRESENTATIVE GRUENBERG informed that the qualifications to practice law and standards for the Bar exam are set by the Supreme Court as delegated in statute; and constitutionally the Alaska Bar Association is under the Alaska Supreme Court. The phrase "licensed to practice law in this state" is one of the qualifications in HJR 18, which he interpreted under the Alaska State Constitution to mean an active license rather than an inactive or retired license because one is not able to practice law with an inactive license. 1:36:16 PM The committee took a brief at-ease. 1:37:32 PM CHAIR KELLER requested Representative LeDoux withdraw Amendment 1 in order to obtain the testimony of former Attorney General Avrum Gross on the unamended resolution. 1:38:14 PM REPRESENTATIVE LEDOUX withdrew Amendment 1. 1:38:42 PM CHAIR KELLER, in response to Representative Stoltze, said in the event Representative Stoltze's attorney cared to testify he/she would be heard as the committee will hear anyone that calls or comes before it. 1:39:04 PM REPRESENTATIVE LYNN noted that he was considering offering an amendment that involves the attorney general running on the same ticket as the governor and lieutenant governor. 1:40:01 PM CHAIR KELLER announced HJR 18 would be heard on Monday at 1:00 p.m. 1:40:23 PM AVRUM GROSS informed the committee he was an assistant attorney general under former [Attorney General] Ralph Moody and Governor William Egan at statehood, and then attorney general under Governor Jay Hammond for six years. He noted he has been an Alaskan resident for more than 50 years and lives at the old Chatham Cannery located in Sitko Bay, across Chatham Straits from Angoon. MR. GROSS noted that this issue was intensely debated at the Alaska Constitutional Convention and introduced in at least 10 or 12 legislatures since then. Each body that has considered this issue in depth, be it Republican, Democrat, Liberal, or Conservative, has concluded that the present system works well for Alaska and an elected system would cause unwanted problems, he opined. In Alaska, the responsibility granted to the attorney general is unusual in that every single legal function of the state is performed under the auspices of the attorney general and the assistants he/she appoints to the department. Furthermore, the attorney general is responsible for all legal advice to state agencies and the myriad of daily problems, such as permits, whether regulations qualify under statutes, qualifications for benefits by an applicant, federal/state conflicts for fish and game, et cetera. The aforementioned occupies a huge amount of the department's efforts. Moreover, the Department of Law is responsible for offering [legal advice] to the governor's office, which is the only office with that responsibility. He explained that the attorney general is the sole state official who has standing to represent the state in court and is responsible for enforcing all of the criminal laws of the state through appointed district attorneys and assistant district attorneys. MR. GROSS described other states with an elected attorney general as very different from Alaska. For instance, in Washington and California criminal prosecutions are handled by elected district attorneys and are not subject to the attorney general's supervision at all. In every state with an elected attorney general, the governor has an extensive staff of attorneys just to advise his office and in many of these states individual departments have their own attorneys hired by and responsible to commissioners. This system makes consistency with regard to the legal advice dictated from the attorney general's office difficult or impossible as the attorney general is called in after the fact. When the attorney general is the sole legal official of the state, the attorney general's actions have an enormous impact on the day-to-day operations of state government, including the fact that prosecution of criminal law is an important public function in which the public is seriously interested. Maintaining a smooth operation of state government under consistent legal advice is critical. Moreover, he said, advising the governor of legal problems before they occur is very important to the success of the governor's administration. Alaska's framers desired centralized executive power and determined that the attorney general should be appointed by the governor who, under the Alaska State Constitution, is solely responsible to the people of Alaska for the effective operation of state government. The governor is the one statewide elected official who cannot make excuses or blame anyone else. He recalled a statewide call-in show when Governor Hammond, in response to a caller, said he, as the governor was the chief law enforcement official in the state. MR. GROSS posed a scenario depicting why the attorney general appointment and control by the governor is so integral to state policy. Suppose a gubernatorial candidate who runs on a platform addressing domestic violence is elected and this governor directs the commissioner of the Department of Public Safety [and the elected attorney general] that he wants more energy spent on the domestic violence issue, a task force established, et cetera. When the governor is then up for re- election and the public complains that he/she didn't lower domestic violence, the governor can point to the elected attorney general and say it is his/her fault. The elected attorney general can blame the governor and say he gave it every priority he thought it deserved in the context of the overall criminal justice operation. He questioned, who Alaskans are supposed to believe under those circumstances. Under the Alaska State Constitution, the theory is that the governor is to be responsible for everything as the governor has the authority to appoint people to carry out his programs. MR. GROSS noted that the Department of Law is no different than any other department and should ensure that state government runs well and that the governor is responsible for what happens. He noted that most of the efforts for change are based around the notion that the attorney general is a mouthpiece for the governor, that the attorney general is too involved in the political process, and that making him the people's attorney by electing the attorney general would alleviate that problem. However, that is not the case. During his nine years of experience and from everything he knows about the Department of Law, he opined that if an attorney general wants to help the governor, politically or otherwise, he does the governor service by telling the truth, as in reality. He remarked that the governor is no different than any other client-attorney relationship. The attorney general in this state is not the law, but he's a lawyer who gives opinions to the governor, and to the state agencies. If he/she gives a bad opinion and gets the governor in trouble, people have access to freely use the courts. He reiterated that the attorney general does the governor no favor by not telling him the best legal course he could follow, or that what the governor plans to do is not consistent with law, he opined. 1:52:16 PM MR. GROSS continued that elected attorneys general have their own political agenda and it could be that the attorney general position is a stepping stone to the position of governor or senator, so it is often not in the attorney general's best interest to make the governor look good. He questioned how the elected attorney general is going to raise money and from whom, trial lawyers or corporations. He opined that the present system is not broken as it has worked very well, and suggested the legislature not fix it. Thank you for the opportunity to testify. I would be happy to answer any questions. 1:55:13 PM CHAIR KELLER announced HJR 18 would be set aside.
Document Name | Date/Time | Subjects |
---|---|---|
HJR 18 Proposed Amendment A.5.pdf |
HJUD 3/14/2014 1:00:00 PM |
HJR 18 |
HJR 18 Proposed Amendment A.3.pdf |
HJUD 3/14/2014 1:00:00 PM |
HJR 18 |
CSHB 127 (STA) Proposed Amendment E.3.pdf |
HJUD 3/14/2014 1:00:00 PM |
HB 127 |