Legislature(1997 - 1998)
03/19/1997 01:30 PM Senate JUD
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SJR 10 ELECTION OF ATTORNEY GENERAL
TUCKERMAN BABCOCK , staff to Senator Lyda Green, prime sponsor of
SJR 10, gave the following testimony. The committee has heard a
heartfelt argument against electing an attorney general. The basic
theory, addressed by Judge Stewart at a previous hearing, was that
the idea of the branches of government is vital to the American
republican form of government, and is not under attack by SJR 10.
No one questions the need to have an energetic executive. The
quote from The Federalist Paper No. 70 by Alexander Hamilton,
referenced by Judge Stewart, has little or nothing to do with the
question of an elected attorney general. Alexander Hamilton was
speaking to the idea of co-equal governors, such as the pro-
councils of Rome. At the time of independence, several states had
councils of equal governors. There is no specific criticism of
electing an attorney general in Federalist No. 70, nor in any of
the Federalist papers. With a single exception, the original 13
states today choose to elect their attorneys general.
TAPE 97-23, SIDE B
Number 580
Mr. Babcock continued. The federal government, designed at the
time of the framers of our constitutional order, has mutated. This
modern federal government would be unrecognizable for many of the
framers. The size, power, or intrusiveness of the federal
government today was not imagined by the framers in 1787. The
framers of the constitutional convention and James Madison, John
Jay, and Alexander Hamilton, who wrote the Federalist papers to
make the case for the adoption of the new Constitution, were
motivated by a need to redesign our initial federal government,
which had, up to that point, managed under the Articles of
Confederation. These Articles had proven to so enfeeble the
federal government, reform was essential.
Mr. Babcock explained the elected executive at the federal level
today is elected by a single ticket and authority is vested in a
single officer. That has not proven entirely workable without some
legislative amendments, the most significant being that of the
office of an independent prosecutor appointed by the attorney
general when there is a need to investigate the executive. We have
experienced the consequences of the lack of such independence in
Alaska's Department of Law. Two examples occurred during the
1980's when a Grand Jury recommended to the Legislature that they
consider impeachment of the Governor, and when the possibility of
corruption of some companies and officials doing business on the
North Slope went largely unaddressed by Alaska's Department of Law.
Mr. Babcock noted in Alaska, the Department of Law serves as the
only legal counsel to each department, commission, and the
Governor. It manages all criminal prosecutions, and advises and
holds final authority over all regulations adopted by any agency of
the Executive Branch. The attorney general's opinions, even if
contradictory to earlier opinions, are the definitive instructions
to state officials as to official actions. The attorney general is
obligated to enforce the law, which is policy adopted by the
legislative branch, but as an at-will political appointee of the
Governor, his/her loyalty is not to the law but to the political
dictates of the Governor. A key difference between the
organization of legal counsel in Alaska and the federal government
is that federal departments have their own attorneys for advice and
assistance. However, when it comes time for defense in court, or
prosecution, the Justice Department gets involved. This issue is
not addressed by SJR 10, but is left to be addressed through the
budgetary process in the Legislature.
According to Mr. Babcock, an elected attorney general in Alaska
would not be a co-equal with the Governor. The attorney general
would simply be an independent authority whose responsibility would
be to sue, defend, and prosecute on behalf of the State. The
attorney general would be responsible to the people in an election
for the choices made in that regard and the Governor would be
responsible for the faithful execution of the laws.
Mr. Babcock clarified that what Senator Green seeks to accomplish,
with SJR 10, is simply to charge a directly elected official with
the primary duty and sole responsibility to act in court on behalf
of the State. The attorney general would have that independent
authority. The function would be similar to the relationship of
police and prosecutors today, except the attorney general would be
responsible to the voters. As long as the Governor and attorney
general would have to run as a team, it would be in the best
interest of the attorney general to cooperate with the executive.
Regarding an example provided by Judge Stewart about Governor
Hickel's and Attorney General Cole's settlement of outstanding
lawsuits with certain oil companies, Mr. Babcock said Judge Stewart
feared that kind of unified policy objective would be frustrated by
a Governor and an independent attorney general. They did work well
together, however when a client wishes to settle, the client does
not need the permission of the attorney general to settle. The
Governor retains the policy call to make a settlement. The
Governor can be a client of the attorney general and the attorney
general's freedom consists of deciding whether to pursue the case,
but only if there is a question before him. The result is not
likely to be a dilution of their energy.
In response to Judge Stewart's comment that several former
governors liked being able to appoint their attorneys general, Mr.
Babcock said what would have been more revealing is the number of
elected attorneys general who have argued for appointment by
governors.
Mr. Babcock noted Judge Stewart was in error regarding the fact
that the only direction any state has taken has been to elect their
attorneys general. No state that has taken that step has chosen to
return to an appointment process. Forty-three states currently
elect their attorneys general. Judge Stewart was correct when he
said that citizens should not expect an elected attorney general to
suddenly start responding to requests from average citizens. The
attorney general will remain the chief attorney for the State of
Alaska, he just will no longer be an at-will employee of the
Governor.
Mr. Babcock discussed one theme touched on by Judge Stewart, and a
primary theme of Anchorage attorney Herb Berkowitz in a recent
article in The Voice of the Times, is that the opinions of the
attorney general can be challenged by any citizen in court. Mr.
Babcock thought that option may have existed when Alaska first
became a State, but now the Department of Law can devote limitless
resources defending or enforcing its opinion and most citizens
cannot afford to make their point in court. Direct election and
influence over who is the attorney general is a serious option.
The Governor will still be able to get legal opinions, just as the
Legislature does today, however from its legal counsel. When it
comes to committing the State of Alaska in court, there will be an
attorney general, directly elected and accountable to the people,
who make that decision. Mr. Berkowitz's objection to the
possibility of posturing by an elected attorney general is
legitimate, however sometimes what one person considers posturing
is actually responding to the desires of the people one is elected
to represent. SJR 10 makes the possibility of posturing to become
the next governor an unattractive option. Any attorney general
will have to wait through an entire election cycle before being
able to run for governor. Those opposed to the election of
Alaska's attorney general claim "if it isn't broke, don't fix it."
To a considerable degree, it is broken. The on-again, off-again
prosecution of cases involving federal-state responsibilities is a
prime example. The Attorney General's actions regarding Alaska
Public Utilities Commissioner Tim Cook is another example of a
system in need of repair, and can only be described as an
underhanded manner in which Governor Knowles avoided legislative
confirmation.
Of all the arguments against electing the attorney general, Mr.
Babcock said the worst is that voters are too ignorant to determine
the qualifications of their attorney general. If the voters can be
trusted to choose the Governor who appoints the attorney general,
they can certainly be trusted to choose the attorney general. If
SJR 10 is placed before the voters, the arguments will be played
out in the election and the voters will decide whether it is better
to maintain the current system, or whether an elected attorney
general will offer something better. An attorney general, directly
responsible to the voters, will focus on better protection from
crime for the innocent, prosecution for the accused, and more
appropriate punishment for those convicted. An attorney general
directly responsible to the voters will have a singular motivation
to move with vigor and commitment in challenging federal
encroachment on the rights and responsibilities of the State of
Alaska.
Mr. Babcock concluded by saying no one is suggesting electing
cabinet officers, or crippling the Governor's ability to exercise
executive powers. SJR 10 gives the people the choice to elect the
chief legal officer of the State of Alaska. The power to go to
court on behalf of the State is an immense power. After 38 years
of Statehood, it is time to give Alaskans a choice to decide
whether they want that power exercised by a political at-will
employee of the Governor, or by someone directly elected by the
people.
Number 476
SENATOR PARNELL referred to Mr. Babcock's comment about the
Governor being a client of the attorney general and asked in which
cases the attorney general would make the call. MR. BABCOCK
replied the attorney general would have the sole discretion to go
to court on behalf of the State. If the attorney general were in
court on behalf of the State and the case involved issues that
could be settled, the Governor, as the client, could settle those
cases.
SENATOR PARNELL asked if getting into court is the attorney
general's call, but whether to quit or go forward is the Governor's
call. MR. BABCOCK answered the Governor has the authority to
settle something like a tax case. If the issue is over the
constitutional relationship with the federal government, the
Governor would not have the ability to deny the attorney general
the ability to continue in court.
Number 463
SENATOR PARNELL presumed SJR 10 would greatly enhance the powers of
the attorney general in the courtroom. He asked Mr. Babcock to
provide a clear delineation of the current powers of the Governor
and attorney general. MR. BABCOCK replied his example was
specifically related to an issue that arises out of a statutory
case regarding tax payments, and in such a case the Governor can
negotiate to collect those taxes before ever going to court. When
it comes to whether or not the federal and state governments are
properly interpreting the relationship of state and federal law,
the Governor does not have the authority to stop the attorney
general from acting on behalf of the State.
CHAIRMAN TAYLOR stated the first paragraph of the committee
substitute addresses the Governor's authority, but the phrase
"brought in the name of the state" was deleted. Consequently, the
Governor could not bring action in the name of the State. MR.
BABCOCK said that is correct.
CHAIRMAN TAYLOR noted subparagraph (c) on the top of page 3
provides that the attorney general may bring necessary and proper
actions on behalf of the State. According to that provision, the
Governor may wish to bring a cause of action against the federal
government, but if the attorney general does not wish to do so, the
cause of action will not be brought. If the Governor wishes to
dismiss a cause of action brought by the attorney general against
the United States, and the attorney general does not wish to
dismiss the case, the cause of action would not be dismissed. MR.
BABCOCK agreed with Chair Taylor's assessment.
MR. BABCOCK noted the proposed committee substitute has not been
adopted (version O-LSO361\F).
Number 426
CHAIRMAN TAYLOR asked, in the 43 states that elect their attorneys
general, if the Governor has any role in what suits are brought or
dismissed, and if so, at what stage. He thought it unlikely
everything is left up to the attorneys general, including advice to
all departments. MR. BABCOCK said in some of the 43 states only
the attorney general can act on behalf of the State. CHAIRMAN
TAYLOR asked if, in those states, the attorney general controls the
hiring and firing, and the advice given by every attorney who works
under him/her for state agencies. MR. BABCOCK replied SJR 10 does
not address that aspect; that process would be a policy call for
the Legislature to make.
Number 406
SENATOR PEARCE asked Mr. Babcock to explain how he envisions the
process working. She asked how things would change if the attorney
general was elected and decided to renegotiate the Cleary
settlement, but the Governor and department heads continued to
refuse to comply with the settlement and the Legislature continued
to refuse to pay the fines. The attorney general could not hold
the Governor and Commissioners in contempt of court so would have
no hammer. MR. BABCOCK did not know, but said the attorney general
would have a more direct motivation to deal responsibly with the
Cleary settlement if elected but he doubted the attorney general
would have any more authority to have the Governor or department
heads fined or arrested than the court already has. SENATOR PEARCE
asked if the Governor could file an amicus brief for either side,
depending on whether he/she supports or opposes the attorney
general's position. MR. BABCOCK said the Governor could not do so
on behalf of the State. The relationship would be similar to that
between the Governor and Legislature in federal court. He added
the other option is to have multiple entities represent the State,
but then no one would represent the State.
SENATOR PEARCE expressed concern about taking action on this issue
because it is still unclear on how the new system would work.
Number 372
CHAIRMAN TAYLOR expressed concern about the "team" concept. He
questioned how a team would form up around the attorney general so
that each agency and department works in accordance with the
attorney general's legal opinions, while the commissioners are
directly appointed by the Governor. He questioned who would advise
the Governor and noted fiscal notes have been submitted that
include funds for a separate cadre of attorneys comparable to the
entire attorney general's office. He said although he understands
the sponsor's intent to have the Governor and attorney general run
together to provide a commonality of philosophy, if the two took
different positions on certain issues, they could spend their time
thwarting each other's efforts and embarrassing each other. He
noted Governor Hickel and Attorney General Cole worked well
together, but split over differences in their environmental
philosophies. Had Attorney General Cole been elected, many legal
hurdles may have been placed before the legislature regarding how
it spent Exxon Valdez settlement funds.
MR. BABCOCK commented many of the concerns raised by committee
members are based on the assumption that constant friction would
exist between the Governor and attorney general, yet 43 states
elect their attorneys general and function smoothly. This
constitutional amendment is structured so that the attorney general
would be clearly responsible for taking court action on behalf, or
in defense, of the state, but the amount of authority given to the
attorney general in advising departments, establishing regulations
for program implementation, or giving opinions to the Governor
would be up to the Legislature to decide.
Number 314
CHAIRMAN TAYLOR stated the committee's questions are based upon the
anxiety of not knowing how other systems work. MR. BABCOCK replied
there is no formula used by the 43 states. CHAIRMAN TAYLOR said he
understood every state probably structured their systems a little
bit differently, but the committee needs an outline of the basic
framework used by different states.
MR. BABCOCK remarked Senator Green did not intend to address the
mechanics of how the 43 other states actually operate because the
Legislature has the discretion to decide on the specifics. He
offered to provide an synopsis of other states' structures to
committee members. He emphasized the resolution is focussed on
whether or not to elect an attorney general.
CHAIRMAN TAYLOR repeated the committee needs at least generalized
answers as to where the state is heading with this legislation.
MR. BABCOCK noted the legislature will have four to six years to
prepare for the first election of an attorney general, and any
polling of the public has shown 70 to 75 percent of respondents in
support of the idea. He repeated there will be four to six years
to make the necessary statutory adjustments to accommodate this
change before an elected attorney general takes office.
Number 274
CHAIRMAN TAYLOR asked Mr. Babcock how he envisions the team concept
operating. MR. BABCOCK replied the attorney general would end up
on the ballot in the same way the lieutenant governor does, and
voters would vote for one set of executive officials. The only
connection between those candidates during the primary election
would be voluntary. Senator Green introduced this concept to
reduce potential friction on a partisan basis between the attorney
general and the Governor. It is not a system used by any of the 43
states that do elect their attorneys general. Some of those
candidates are nominated by Convention and then are locked into
running as a party in the general election. CHAIRMAN TAYLOR asked
if the race is partisan in each of those states. MR. BABCOCK
corrected himself and said the nomination aspect is purely
partisan, the election is not. When nominated, the registered
Republicans or Democrats in the Convention nominate the candidate,
and then the candidate runs independently in the election.
CHAIRMAN TAYLOR asked if the candidate runs as a Democrat or
Republican. MR. BABCOCK explained the candidate runs as one or the
other, but independent of the governor.
CHAIRMAN TAYLOR commented several Alaskan governors and their
attorneys general feuded; runing on the same ticket will not ensure
a harmonious relationship among those officials. He noted there is
a lot of concern at this time among committee members about the
impact of this resolution, and he plans to continue to hold
hearings on this issue until the committee feels more comfortable.
He thanked Mr. Babcock for his presentation.
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