Legislature(1999 - 2000)
03/06/2000 01:56 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 286-DUTIES AND POWERS OF ATTORNEY GENERAL
MR. MARK JOHNSON, representing the Subcommittee on Privatization
for the Department of Law (DOL), gave a collective overview of SB
286 and SJR 14. SB 286 emerged from the work of the Subcommittee
on Privatization and was introduced by the Senate Judiciary
Committee. The bill is an attempt to "re-craft" certain powers of
the Attorney General (AG). The most significant part of this
legislation is in Section 1(b)(7), perform all other duties
required by law [OR WHICH USUALLY PERTAIN TO THE OFFICE OF ATTORNEY
GENERAL IN A STATE]; and. Common law powers of the AG may be taken
by someone in that position to imply just about anything--this bill
clarifies the duties of the AG. There may be powers the AG
believes are necessary for carrying out the duties of office, and
a way to resolve this may be for the department to come forward and
say what it needs and enumerate on that.
MR. JOHNSON commented that the second most important item is the
effort to redefine where the AG's obligations lie. The law
currently states, the AG is the legal advisor of the governor and
other state officers. CSSB 286 proposes in section 1, the state,
including the governor and other state officers. This is a
philosophical difference--an important one.
MR. JOHNSON noted that the third item of importance is in section
1(c), The attorney general may, subject to the power of the
legislature to make appropriations, settle actions, cases, and
offenses under (b) of this section in which the attorney general
represents the state and in which the state is a party.
Constitutionally in Alaska, an appropriation is required before
money is spent. The AG does not settle cases that require new
appropriations nor does he make them subject to appropriation. The
concept of a settlement term requiring an appropriation and being
subject to the legislative power of appropriation does not appear
in the law. This is why the Subcommittee on Privatization is
proposing that the language in CSSB 286, subsection (c) be added.
Number 570
JUDGE THOMAS B. STEWART, retired Superior Court Judge, Secretary of
the Constitutional Convention, Senator in the first Alaska State
Legislature and Chairman of the State Affairs Committee which wrote
the legislation that set up the executive branch, stated he has an
immediate concern with section 1 of CSSB 286, (a) The attorney
general is the legal advisor of the state, including the
governor... It is a mistake to view the AG as representing
anything beyond the executive branch. Because the AG's primary
duty is to represent the executive branch, it is a conflict of
interest for him to be giving advise to the legislature. Each
branch of the legislature needs separate counsel because their
interests sometimes conflict, and it is especially important that
the AG not represent both the governor and the legislature when
they are of different parties. The AG is, of necessity, in a
conflict position if he seeks to advise the legislature. The
language, legal advisor of the state, at least by inference,
suggests the AG is legal advisor for both the legislature and the
court system. The court system has its own counsel and never calls
upon the AG to represent its interest.
Number 905
CHAIRMAN TAYLOR noted he has the same concern as Judge Stewart with
inserting the language, including the. The AG will have to be true
to one side or the other--which side will it be? As concerns the
second page of the bill, subject to the power of the legislature to
make appropriations...., there have been situations where the
governor, through the AG, settled cases where money was
appropriated to a new trust that was created solely out of the
settlement of a specific case. The money was not appropriated by
the legislature even though the funds were due and owing to the
State of Alaska. The governor appropriated all the money by
creating a mechanism that would disperse those monies as he saw fit
and the legislature could find no way in which to affect that
settlement.
CHAIRMAN TAYLOR noted he is concerned with this type of situation
and, at the same time, every case should not have to come back to
the legislature for approval--this legislation may makes that
necessary.
JUDGE STEWART said he has not studied this matter and would be
loath to give an opinion. On the face of it though, he does not
see a problem with the language, and he is sympathetic with the
legislature being the body that determines how state monies will be
spent.
CHAIRMAN TAYLOR asked how Judge Stewart would amend this
legislation to resolve the conflict--will the AG represent the
people of the state, the legislature, or the governor?
Number 1059
JUDGE STEWART responded the AG should represent the executive
branch. The governor is elected by the people to represent them
and the AG represents the governor, thus, representing the majority
of the people.
SENATOR DONLEY asked if the AG has a higher responsibility to the
constitution or to the governor. Some governor's have placed the
AG in direct conflict with their duty to defend the constitution,
and if the AG is serving the people his loyalty will primarily be
to the constitution. How does an AG balance his loyalty between
his duty to the governor and to the constitution?
JUDGE STEWART asked to defer, and stated he will explain his view
when the committee is addressing SJR 14.
MR. MARK JOHNSON noted he appreciated Judge Stewart's comments
regarding the initial proposed amendment and commented that this is
an issue the committee needs to reflect on.
CHAIRMAN TAYLOR asked Mr. Johnson how he would resolve the conflict
of the AG representing both the governor and the state.
MR. JOHNSON responded it is the position of DOL that the executive
branch already represents the legislature and the judiciary in some
matters. Traditionally, if there is a conflict of interest and
someone does not call it to the public's attention, the AG will
raise the issue and allow the other branch to retain their own
counsel.
CHAIRMAN TAYLOR asked why the constitutional convention did not
include the AG as a constitutionally created officer.
JUDGE STEWART responded the legislature had the responsibility to
create all departments of the executive branch, and the AG was
another department of the executive branch--departments were not
created but their functions were described. This is detailed
matter that is adapted to being handled by statute.
CHAIRMAN TAYLOR noted that in some states the AG is elected to
"represent the people," and the governor has separate counsel.
Number 1449
SENATOR DONLEY said he would like the committee to consider adding
to the duties of the AG, "he or she shall defend the constitution
of the State of Alaska against legal challenges." The AG should
have a responsibility to say no to the governor if the governor
asks him to do something that is in conflict with his duty to the
constitution.
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