04/12/2007 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB59 | |
| HJR6 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 59 | TELECONFERENCED | |
| += | HJR 6 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
April 12, 2007
8:05 a.m.
MEMBERS PRESENT
Representative Bob Lynn, Chair
Representative Bob Roses, Vice Chair
Representative John Coghill
Representative Kyle Johansen
Representative Craig Johnson
Representative Andrea Doll
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 59(FIN)
"An Act relating to the use of broadcasting to promote
charitable raffles and lotteries and to establishing cabbage
classics as a form of charitable gaming."
- MOVED HCS CSSB 59(STA) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 6
Proposing amendments to the Constitution of the State of Alaska
relating to the office of attorney general.
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 59
SHORT TITLE: GAMING: BROADCASTING/CABBAGE CLASSICS
SPONSOR(s): SENATOR(s) STEVENS
01/19/07 (S) READ THE FIRST TIME - REFERRALS
01/19/07 (S) L&C
02/06/07 (S) L&C AT 1:30 PM BELTZ 211
02/06/07 (S) Heard & Held
02/06/07 (S) MINUTE(L&C)
02/08/07 (S) L&C AT 1:30 PM BELTZ 211
02/08/07 (S) Moved SB 59 Out of Committee
02/08/07 (S) MINUTE(L&C)
02/09/07 (S) L&C RPT 5DP
02/09/07 (S) DP: ELLIS, BUNDE, DAVIS, STEVENS,
HOFFMAN
03/02/07 (S) FIN REFERRAL ADDED
03/13/07 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/13/07 (S) Moved CSSB 59(FIN) Out of Committee
03/13/07 (S) MINUTE(FIN)
03/14/07 (S) FIN RPT CS 4DP 3NR NEW TITLE
03/14/07 (S) DP: HOFFMAN, STEDMAN, THOMAS, HUGGINS
03/14/07 (S) NR: ELTON, DYSON, OLSON
03/21/07 (S) TRANSMITTED TO (H)
03/21/07 (S) VERSION: CSSB 59(FIN)
03/22/07 (H) READ THE FIRST TIME - REFERRALS
03/22/07 (H) STA, FIN
04/12/07 (H) STA AT 8:00 AM CAPITOL 106
BILL: HJR 6
SHORT TITLE: CONST. AM: ELECTED ATTORNEY GENERAL
SPONSOR(s): REPRESENTATIVE(s) CRAWFORD
01/25/07 (H) READ THE FIRST TIME - REFERRALS
01/25/07 (H) STA, JUD, FIN
03/15/07 (H) STA AT 8:00 AM CAPITOL 106
03/15/07 (H) Heard & Held
03/15/07 (H) MINUTE(STA)
04/12/07 (H) STA AT 8:00 AM CAPITOL 106
WITNESS REGISTER
DOUG LETCH, Staff
to Senator Gary Stevens
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 59 on behalf of Senator
Stevens, prime sponsor.
DENNIS EGAN, President and General Manager
Alaska-Juneau Communications, Inc.;
Board Member and Past President
Alaska Broadcasters' Association
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 59.
GRETCHEN KLEIN
Ketchikan, Alaska
POSITION STATEMENT: Testified on behalf of herself in support
of SB 59.
DENNIS BOOKEY, Manager
Morris Communications
(No address provided)
POSITION STATEMENT: Testified in support of SB 59.
DAVID LAMBERT, Past President
Alaska Dog Mushers Association
Fairbanks, Alaska
POSITION STATEMENT: Expressed support of Representative
Coghill's proposal addressing dog mushers' contests during the
hearing on SB 59.
DARWIN PETERSON, Staff
to Senator Lyda Green
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: On behalf of Senator Green, explained the
reason for specific language in SB 59.
REPRESENTATIVE HARRY CRAWFORD
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as prime sponsor of HJR 6
ALEX FOOT, Intern
to Representative Harry Crawford
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Offered information on behalf of
Representative Crawford, prime sponsor of HJR 6.
ACTION NARRATIVE
CHAIR BOB LYNN called the House State Affairs Standing Committee
meeting to order at 8:05:44 AM. Representatives Roses, Coghill,
Johansen, Doll, and Lynn were present at the call to order.
Representatives Johnson and Gruenberg arrived as the meeting was
in progress.
SB 59-GAMING: BROADCASTING/CABBAGE CLASSICS
8:06:37 AM
CHAIR LYNN announced that the first order of business was CS FOR
SENATE BILL NO. 59(FIN), "An Act relating to the use of
broadcasting to promote charitable raffles and lotteries and to
establishing cabbage classics as a form of charitable gaming."
8:07:03 AM
REPRESENTATIVE JOHNSON declared a conflict of interest. He
explained that his wife works for a television station in
Anchorage and sits on the board of directors of the Alaska
Broadcast Association, the entity that is bringing the bill
forward. He asked that he be excused from discussion and voting
on SB 59.
REPRESENTATIVE COGHILL objected, and said he thinks
Representative Johnson should participate.
CHAIR LYNN requested that Representative Johnson participate in
the committee process, including voting.
8:07:41 AM
DOUG LETCH, Staff to Senator Gary Stevens, Alaska State
Legislature, presented SB 59 on behalf of Senator Stevens, prime
sponsor. He said the bill relates to the use of broadcast media
to promote raffles and lotteries. One section of the bill, he
noted, addresses the Palmer Cabbage Classic. He stated the
sponsor's intent is to level the playing field for Alaska's
broadcasters, while helping out local charities around the state
by allowing the charities to advertise raffles and lotteries on
the radio. Currently, charities are allowed to put out such
advertisements only by newspaper and other print media. He
noted that federal law allows states to set their own
regulations regarding this issue.
8:09:18 AM
MR. LETCH revealed that he is a former broadcaster. He relayed
that he worked at the public radio station in McGrath, in 1992,
and this issue was prominent then, because there was no
newspaper that served the McGrath area. He spoke of his
involvement with various charities in Kodiak, and said the
ability to use radio would help in that community's fundraising
efforts, as well.
8:10:32 AM
MR. LETCH, in response to Chair Lynn, emphasized that the
proposed legislation "is not in any way, shape, or form an
expansion of gambling in the state of Alaska." He said there is
a zero fiscal note. In response to a follow-up question, he
suggested that Mr. Egan could better answer questions related to
the amount broadcasting companies would charge. Notwithstanding
that, he shared his knowledge that nonprofit organizations are
given a special advertising rate.
8:11:46 AM
MR. LETCH, in response to Representative Roses, offered his
understanding that radio stations cannot even mention that a
nonprofit entity is holding a raffle, without getting in
trouble. In response to a follow-up question, he offered his
understanding that if the bill were to pass, the broadcasters
would have the flexibility to decide whether to charge a
nonprofit group or offer air time for advertising a raffle, for
example, as a community service announcement.
8:13:20 AM
DENNIS EGAN, President and General Manager, Alaska Juneau
Communications; Board Member and Past President of the Alaska
Broadcasters' Association, testified in support of SB 59. He
said the bill would afford a solution to the disparate treatment
currently being imposed on Alaska's broadcasters by current
Alaska statute. He continued:
Alaska statute bans - but only by way of radio and
television [("TV")] - the advertising of lawful,
charitable gaming or conduct. Newspapers and related
media are free to advertise the very same activity and
conduct that radio and TV stations may not advertise.
Recognizing the unfair burden placed upon
broadcasters, [U.S.] Congress passed the charity games
advertising clarification Act of 1988. It's been in
effect since 1990. Congress opened the door for
broadcasters to advertise for a charity, not to
conduct charitable gaming. The new federal law left
it up to the individual states to ratify the federal
law, and to this date, nearly every state has allowed
broadcasters in their respective states to become
fully consistent with federal law.
Under the Charity Games Advertising Act, signed into
law by President [Ronald] Reagan in 1988, federal law
prohibits the acceptance of any advertising from a
business whose primary purpose is the conducting of a
gaming activity, charitable or otherwise. We feel
that being allowed to announce that the local
volunteer fire department is having a raffle to raise
funds for CPR equipment or the senior center is
selling tickets on an afghan to raise funds for the
senior citizen Care-a-van or that the high school
sports teams are selling tickets for a raffle to raise
funds for travel is not detrimental to anyone.
Alaska's broadcasters are not trying to suggest to you
what activities should be permissible in the state.
What we are asking is that all media, including print,
electronic, direct mail have the same ground rules
when it comes to promotion.
MR. EGAN remarked that the passage of the Act in 1988 was a long
time ago. He continued:
As a federal licensee, broadcasters are one of the
most highly regulated industries in the United States,
and we urge you to provide equity and give your
favorable consideration to ... SB 59.
8:16:06 AM
REPRESENTATIVE COGHILL said he knows this issue has been brought
to the legislature before, and he asked what the prior barriers
to its acceptance have been.
MR. EGAN confirmed that there have been attempts to get a form
of this legislation passed since 1991. He said timing was a
significant issue, and he noted that there were gaming issues at
that time, including pull tabs. Multiple amendments confused
the issue, Mr. Egan said, and the attempted legislation "lost
track of exactly what broadcasters were trying to do." He
specified that he has no objections to the amendments slated for
proposal to amend SB 59.
REPRESENTATIVE COGHILL mentioned pull tabs, card gaming, and
casino gaming, and suggested that "this just kind of got caught
up in the dust storm that those issues create." He said he
thinks SB 59 is an important bill that he would like to see "get
through" this year.
MR. EGAN reiterated that the bill has nothing to do with gaming;
where gaming is prohibited, it would remain so.
8:18:42 AM
MR. EGAN, in response to Chair Lynn, confirmed that the vast
majority of radio stations have nonprofit rates. He said, "If
they don't purchase advertising anywhere, in any competing
media, we give it to them. I mean, we're there trying to help
the community, and we're more than happy to ... extend our
facilities for them to promote their raffles or whatever they're
doing." In response to a follow-up question, he confirmed that
the aforementioned nonprofit rates are lower than the rates for
commercial and political advertising.
8:19:51 AM
REPRESENTATIVE COGHILL noted that the word lottery is in the
title of the bill, and the definition of it is broad, which
concerns him. He said the definition is found in [AS 05.15.690,
paragraph (40)], which read as follows:
(40) "raffle and lottery" means the selling of
rights to participate and the awarding of prizes in a
game of chance conducted by the drawing for prizes by
lot;
REPRESENTATIVE COGHILL said the bill deals primarily with
charitable (lotteries); however, he warned, "There's going to
come a day when we're going to have to hold the defense up for
another type of lottery." In response to Chair Lynn, he said he
would be offering an amendment for a title change, which would
require "a title resolution on the [House] floor."
8:22:58 AM
GRETCHEN KLEIN testified on behalf of herself in support of SB
59. She listed all the nonprofit organizations with which she
has been active. She said nonprofit organizations will always
struggle to diversify their funding and are dependent on federal
and state funding to exist. Raffles, she noted, can fund up to
20 percent of nonprofit programming or events. She confirmed
that nonprofit organizations do receive better rates for
advertising. She said the programs of nonprofit organizations
improve the quality of life for communities. She indicated that
being able to advertise on the radio would not do anyone harm,
and nonprofit organizations sometimes just want to get on the
radio and talk about their programs. She indicated that these
organizations want to abide by the law, thus, adopting SB 59
would help them get their message out on the air legally.
8:26:16 AM
MS. KLEIN, in response to a request from Representative
Johansen, recollected that there had been an incident last
summer during a swim event to benefit diabetes. The nonprofit
organization involved had paid to have "a live remote" follow
the swimmers. She indicated that the related raffle was
accidentally mentioned on the radio. Another radio station
reported this to the state's regulating board, and the radio
station in question was investigated. She said potentially
there could have been a fine of $100,000, even though the event
itself only made $12,000. She said she wrote letters to explain
that the incident was a mistake.
8:29:35 AM
DENNIS BOOKEY, Manager, Morris Communications, testified in
support of SB 59. He said he is also a partner in the
commercial stations in Kodiak, as well as being the Past
President of the Alaska Broadcasters Association - as Mr. Egan
is. He concurred that this is an issue of creating an equal
playing field. He said radio stations will regularly air
nonprofit events at no charge during leftover time slots.
Furthermore, he said it has been the policy of every broadcast
company he has ever worked for that it will match the order of a
nonprofit organization. In other words, the station will charge
the regular rate and then duplicate the order at no charge,
which basically means that organization is paying about half
price.
8:32:04 AM
DAVID LAMBERT, Past President, Alaska Dog Mushers Association,
told the committee that he has been "very involved in gaming
over the years." He stated, "I'm strongly in support of
Representative Coghill's proposal addressing dog mushers'
contests." He said those contests are gaming events. He
stated, "Currently it is illegal ... to promote the Iditarod,
Yukon Quest, or any of those on radio and television. Several
years ago we tried to correct this through regulations, but it's
in state statute; it clearly identifies dog mushing contests."
He posited that it is time to make a change and allow those
events to be broadcast legally. He commented that lotteries are
no different than raffles.
8:33:41 AM
CHAIR LYNN, after ascertaining that there was no one else to
testify, closed public testimony.
8:34:07 AM
REPRESENTATIVE COGHILL moved to adopt Amendment 1, labeled 25-
LS0410\E.2, Luckhaupt, 3/31/07, which read as follows:
Page 1, line 1, following "promote":
Insert "dog mushers' contests and"
Page 2, line 20, following "derby":
Insert ", a dog mushers' contest,"
REPRESENTATIVE COGHILL spoke to Amendment 1. He stated that he
thinks dog mushers' contests fit "well within the range of what
we're trying to do here."
CHAIR LYNN announced that there being no objection, Amendment 1
was adopted.
8:35:48 AM
REPRESENTATIVE GRUENBERG directed attention to the sectional
analysis prepared by Gerald P. Luckhaupt, Legislative Legal and
Research Services [included in the committee packet], in which
Mr. Luckhaupt recommends, through footnotes, that the occurrence
of the term, "a cabbage classic", be changed to "cabbage
classics".
8:36:12 AM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 2, as follows:
On page 1, line 10:
Delete "a cabbage classic"
Insert "cabbage classics"
On page 2, line 4:
Delete "a cabbage classic"
Insert "cabbage classics"
On page 2, line 10:
Delete "a cabbage classic"
Insert "cabbage classics"
8:37:49 AM
REPRESENTATIVE GRUENBERG, in response to a question from
Representative Coghill, said it would not be necessary to
pluralize the language in the definition section of the bill.
8:38:04 AM
REPRESENTATIVE ROSES directed attention to page 2, lines 30-31,
which addresses a "Giant Cabbage Weigh-Off at the Alaska State
Fair in Palmer operated and administered by the Palmer Rotary
Club." He asked why - if the idea is to use the plural,
"cabbage classics" - the bill language would single out one
particular event and sponsor. He said he supports the concept,
but is concerned that if in the future the sponsorship changed
hands, then the event would no longer be legal.
8:39:36 AM
REPRESENTATIVE GRUENBERG responded that he had been concerned
that Section 5 of the bill would violate Article 2, Section 19,
which read [original punctuation provided]:
SECTION 19. Local or Special Acts.The legislature
shall pass no local or special act if a general act
can be made applicable. Whether a general act can be
made applicable shall be subject to judicial
determination. Local acts necessitating appropriations
by a political subdivision may not become effective
unless approved by a majority of the qualified voters
voting thereon in the subdivision affected.
REPRESENTATIVE GRUENBERG related that Mr. Luckhaupt told him it
has been the legislature's policy, in dealing with issues
related to "these kinds of specific gambling arrangements," to
make the language specific so that the legislature "reviews each
one separately and does not just give wholesale approval, but
very narrowly goes forward in this area." He noted that there
is precedent for listing events in plural form. For example,
there is a specific Deep Freeze Classic in Delta Junction and a
Canned Salmon Classic in Petersburg, yet the bill lists "deep
freeze classics, canned salmon classics". He concluded by
stating, "I wanted to put it on the record that we had, as a
committee, looked into this, and we believe that this advances a
very specific beneficial policy purpose, and we do not believe
that this is unconstitutional."
MR. LETCH, in response to a question from Representative
Gruenberg, told him that he thinks he is "on track" with this
language. He deferred further comment to Senator Lyda Green's
staff.
8:42:22 AM
DARWIN PETERSON, Staff to Senator Lyda Green, Alaska State
Legislature, on behalf of Senator Green, explained that the
reason for the specific language previously highlighted by
Representative Roses, in Section 5 of the bill, was to specify
that "this is the only place that we intend for this charitable
event to occur." Regarding plural versus singular, he explained
that Senator Kim Elton had offered an amendment that changed the
events from a plural listing to a singular one, because that is
how they were listed under "the definition." However, Mr.
Peterson said he thinks Representative Gruenberg is correct.
8:44:51 AM
REPRESENTATIVE GRUENBERG said he can understand what [Sen.
Elton] was thinking, but legally, Mr. Luckhaupt is correct.
8:45:21 AM
REPRESENTATIVE COGHILL indicated that he does not see the
necessity of pluralizing the classics listed in the bill until
"we get to that policy call."
8:46:03 AM
REPRESENTATIVE ROSES questioned restricting the cabbage classic
to the Alaska State Fair, when the title uses the term "cabbage
classics". He stated his preference would be to read: "the
cabbage weigh-off at the Alaska State Fair."
8:47:23 AM
REPRESENTATIVE COGHILL said he would remove his objection
[expressed through discussion, but not as an outright
objection].
8:48:44 AM
CHAIR LYNN announced that with no further objection, Amendment 2
was adopted.
8:49:05 AM
REPRESENTATIVE COGHILL moved to report CSSB 59(FIN), as amended,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, HCS CSSB
59(STA) was reported out of the House State Affairs Standing
Committee.
REPRESENTATIVE COGHILL reminded Chair Lynn that no action would
need to be taken regarding the aforementioned resolution, but it
would need to go to the House floor with the bill.
HJR 6-CONST. AM: ELECTED ATTORNEY GENERAL
8:50:16 AM
CHAIR LYNN announced that the last order of business was HOUSE
JOINT RESOLUTION NO. 6, Proposing amendments to the Constitution
of the State of Alaska relating to the office of attorney
general.
The committee took an at-ease from 8:50:28 AM to 8:52:43 AM.
8:53:01 AM
REPRESENTATIVE HARRY CRAWFORD, Alaska State Legislature, as
prime sponsor of HJR 6, offered his understanding that there are
45 states that don't have appointed attorney generals. He
stated his belief that when Alaska first became a state, it
thought it would be continually battling the federal government,
which is why the state chose in its constitution to have an
appointed attorney general. He said Alaska has grown up since
then and it is time to correct what he said he believes was a
flaw in the original constitution. He said he has a problem
with the words in the constitution that say the attorney general
"shall serve at the pleasure of the governor." He stated his
belief that the AG should be able to ferret out wrongdoing
wherever he/she sees it, without the threat of being fired. He
recognized the AG as the top lawyer for the people of Alaska,
but said currently the AG is serving as the top lawyer for the
governor.
8:55:46 AM
CHAIR LYNN pointed out that the governor has the power not only
to fire the AG, but also to keep him/her.
REPRESENTATIVE CRAWFORD agreed, but reiterated that he believes
that is wrong to have the AG serving completely at the pleasure
of the governor.
CHAIR LYNN noted that not only is a governor elected, but an
entire administration; typically that entire administration is
of the same or nearly the same political party as the governor.
He questioned whether or not the AG should belong to the same
party as the governor.
8:57:28 AM
REPRESENTATIVE CRAWFORD recalled that during one of the first
interviews of the current AG, he was asked whether he served the
governor or the people, and the AG had a difficult time
answering the question.
CHAIR LYNN suggested that there may not be a good answer.
REPRESENTATIVE CRAWFORD emphasized that although the AG can be a
legal advisor for both the governor and the public, it is a
mistake to say that he/she works for the governor and not the
people. In response to Chair Lynn's comment about political
affiliation, he credited Representative Johnson with having
suggested there be an open primary for AGs, followed by an
election for the AG, the same way as the public elects the
lieutenant governor - as "part of a slate." Representative
Crawford said he likes that idea; it would mean the top three
offices would be elected as a group. He said this would mean
that although the AG may be allied with the governor, he/she
would not walk in to work one day and be fired by the governor.
9:00:13 AM
CHAIR LYNN asked how there would be any certainty that an
elected AG would not be giving answers to advance his/her
political future.
REPRESENTATIVE CRAWFORD said he believes that he should be able
to go to the attorney general and ask for advice, no matter what
the AG's political affiliation is.
CHAIR LYNN asked Representative Crawford what he would do if he
was governor and his AG wanted to legalize casino gambling in
the state.
REPRESENTATIVE CRAWFORD said he would try to work the issue out
one way or the other. He stated his belief in direct democracy
and trusting the judgment of the people; therefore, if he were
governor and the public elected an AG who ran on a pro-gambling
platform, he would have to live with that. In response to a
question from Chair Lynn, he concurred that Alaska has a
representative form of democracy, but he stated his belief in
the direct election of state officials.
9:04:00 AM
REPRESENTATIVE ROSES offered his understanding that the AG takes
an oath of office to uphold the Constitution of the State of
Alaska and protect the rights of the citizens of the state;
he/she doesn't take an oath to protect the rights of the
governor. He said he knows there can be conflict, but he does
not see any difference "in terms of the appointment." He
directed attention to the sponsor statement, and read: "Serving
at the pleasure of the governor exposes the attorney general to
a conflict between his or her loyalty to the head of the
executive branch and his or her duty to represent and protect
the people of Alaska." The sponsor statement goes on to say
that that is an ethical dilemma. Representative Roses noted
that he was appointed by a former governor to sit on the Alaska
Retirement Management (ARM) Board, and he said his
responsibility on that board was to do that which would benefit
the ARM Board, not that which would benefit the governor. He
questioned how far Representative Crawford's idea would go. For
example, would every board member and every person who serves as
commissioner be elected by the people? He stated, "At some
point in time we must believe in the integrity of the
individuals that are serving and the oath of office that they
take." He said getting elected does not make a person more or
less ethical.
9:07:02 AM
REPRESENTATIVE CRAWFORD noted that out of the scenario that
Representative Roses described, the only person who has the
ability to investigate or charge the governor with a crime is
the attorney general, and he/she can be fired by the person
being investigated.
REPRESENTATIVE ROSES asked if the legislature has the authority
to hire its own prosecutor in the event that it determines there
has been wrong-doing on behalf of the governor and no proper
investigation by the attorney general is being conducted.
REPRESENTATIVE CRAWFORD said during the last administration, the
AG resigned "under pressure"; however, he offered his
understanding that the legislature did not have the ability to
hire a special prosecutor.
REPRESENTATIVE ROSES concluded that the legislature currently
has the ability to be the checks and balances system.
REPRESENTATIVE CRAWFORD said private citizens have the ability
to file charges. He added, "We didn't do that as a legislature
or as a legislator."
REPRESENTATIVE ROSES said, "If we didn't have a [checks and
balances] system in place, and it was totally up to that
individual and that was the only person that had the ability to
do it, I would be with you 100 percent." He said he does not
take changes to the constitution lightly and he is reluctant to
agree to changing it without thinking that there were no other
options.
9:10:27 AM
REPRESENTATIVE DOLL said she gets nervous with the idea of the
public electing the attorney general. Although it would mean a
vote of the majority, she said oftentimes the majority moves
like a wave in the ocean. She emphasized her reliance on the
law of the constitution. She said she would like to see [an
attorney general] who is appointed by the supreme court, so that
he/she is beholden to neither the governor nor the public.
9:11:25 AM
REPRESENTATIVE GRUENBERG said attorneys in Alaska, including the
attorney general, are subject to the code of professional
responsibility which comprises several rules of professional
conduct. Representative Gruenberg cited AS 44.23.010, which
read:
Sec. 44.23.010. Attorney general.
The principal executive officer of the Department of
Law is the attorney general.
REPRESENTATIVE GRUENBERG next cited 44.23.020(a), which read as
follows:
(a) The attorney general is the legal advisor of
the governor and other state officers.
REPRESENTATIVE GRUENBERG noted that AS 44.23.020(b) lists the
functions of the attorney general. He continued:
But there are cases that say that the powers and
duties of the attorney general are those described at
common law, which means that the AG is the chief legal
officer for the state as an organization. So, really,
at the common law and in this state, the client of the
AG and all of the members of the Department of Law is
the state.
... They talk in terms of this particular rule as
individual people in state government are not his
clients or her clients, but they are constituents of
the client, which is the state as a whole.
REPRESENTATIVE GRUENBERG referred back to the rules of
professional conduct, specifically Rule 1.13 - "Organization as
Client." He read "(a)" as follows:
Except as herein after provided, a lawyer employed or
retained by an organization ... represents the
organization acting through its duly authorized
constituents.
REPRESENTATIVE GRUENBERG next read from the commentary portion
of the rule, which read as follows:
Clarifying the Lawyer's Role
There are times when the organization's interest may
be or become adverse to those of one or more of its
constituents. In such circumstances the lawyer should
advise any constituent, whose interest the lawyer
finds adverse to that of the organization of the
conflict or potential conflict of interest, that the
lawyer cannot represent such constituent, and that
such person may wish to obtain independent
representation. Care must be taken to assure that the
individual understands that, when there is such
adversity of interest, the lawyer for the organization
cannot provide legal representation for that
constituent individual, and that discussions between
the lawyer for the organization and the individual may
not be privileged based on the facts of the case.
9:15:43 AM
REPRESENTATIVE GRUENBERG said the federal government has created
"the Office of the White House Council." He recommended that
the legislature look at AS 44.23 and consider establishing,
through statute, some type of governor's council that could be
employed in the event of a conflict of interest. He emphasized
the importance of having such a council.
CHAIR LYNN said there is a problem that needs to be addressed,
but said the debate is whether or not electing an AG would solve
the problem.
9:17:23 AM
REPRESENTATIVE CRAWFORD said he understands everything
Representative Gruenberg just said about who the client is, and
it may address the issue of conflict of interest; however, he
said that "still doesn't remove the problem in that the governor
can walk in and fire the attorney general for whatever ...
[reason]." He said that is problematic.
9:18:44 AM
REPRESENTATIVE JOHNSON said he hates to develop policies based
on situations. He said a situation comes to mind where the AG
had an opportunity to advance a law suit, thought the state had
a good chance of winning, was told by "his boss" that the
lawsuit would not be advanced, and went on record to say [the
lawsuit] was removed for political reasons. He surmised that if
there had been an elected AG in office at that time, the issue
would have been addressed. He said it was an issue that still
exists and that the state will be facing for a long time to
come. He said he has no interest in setting up an adversarial
situation; however, he wonders how many instances there have
been when the AG has said, "We can win this," and the governor
has said no.
9:21:44 AM
REPRESENTATIVE CRAWFORD said it was obvious that the AG was
following orders, and that is something that has happened over
the years. He clarified that he does not want to cast
dispersions upon all attorneys general. He restated that he
does not think the attorney general should have to be "part of
the team," because he's "different from other department heads."
He reiterated that the AG is a law enforcement officer; the top
lawyer for the people of Alaska. He said both the United States
Constitution and the Constitution of the State of Alaska have
been amended and will be again. He said it is difficult to
amend the constitution; it takes a two-thirds vote of both
bodies, plus a vote of the people.
9:24:33 AM
REPRESENTATIVE ROSES said the focus thus far has been on what
happens when the AG disagrees with the governor, with the
assumption that the AG was right, the governor was wrong, and
there was no recourse. He asked what happens in a situation
when the governor is right or where there has been a misuse of
office, and the AG was elected. The only recourse at that
point, he surmised, would be to recall the elected AG, which he
said concerns him. He posited that one advantage of having an
appointed AG is that the governor can dismiss him/her for
misconduct in one day instead of - in the case of an elected AG
- having to wait until the next election. He suggested that to
address any concerns that an AG could be dismissed unjustly, the
legislature has the power to put some checks and balances in
place - for example, to have an appeal or review process.
9:26:14 AM
REPRESENTATIVE CRAWFORD suggested impeachment as another option.
He indicated that he is open to other suggestions for making the
AG independent of the governor. He expressed appreciation for
Representative Johnson's idea to elect attorneys general "as a
slate."
REPRESENTATIVE ROSES said he thinks electing attorneys general
as a slate would give the impression that "they're part of the
same group and that they're going to support each other." He
said that would not necessarily prevent conflict or the
perception of "serving at the pleasure of [the governor]." He
said he is not in favor of the election process.
9:28:14 AM
REPRESENTATIVE GRUENBERG directed attention to an article from
Alaska Scrapbook, [included in the committee packet]. He said
the framers of the Constitution of the State of Alaska
deliberately decided to change from the territory's practice of
electing an AG to having one appointed by the governor. He
offered an historical example of another branch of government
attempting to control the attorney general, and he relayed that
the Alaska Supreme Court says that is not allowable. He
explained that the decision whether to prosecute or not to
prosecute is an executive decision, and it is a violation of the
constitutional separation of powers for a different branch to
make that decision. He said he does not think there would be
anything wrong with the idea of the legislature passing a law
requiring the executive branch to pursue an appeal. He said the
decision to appeal or not to appeal is an "internal question."
9:32:32 AM
REPRESENTATIVE GRUENBERG said the opposite situation can occur
just as easily. He explained that an attorney general who was
elected may do something for political purposes that does not
serve the best interest of the state. He commented on the
number of elected officials that would be serving if the AG was
also elected.
9:34:01 AM
REPRESENTATIVE COGHILL stated that the main purpose for the
decision during the Constitutional Convention to have an
appointed attorney general was to have a strong executive
branch, and one reason for that is so that Alaska could "stand
strong as a small state in a large country." He emphasized the
importance of reading that part of the floor debate from the
Constitutional Convention related to the attorney general as a
reminder of what the members of that convention argued about.
He said there were other arguments, such as whether [attorneys
general] should be approved by the legislative council, brought
up by the judicial council, or appointed by the [Alaska] Supreme
Court. He offered further details.
9:40:04 AM
CHAIR LYNN said this is a significant issue and he wants to "put
a lot of sunlight" on it. He said he thinks a good case can be
made for both arguments.
9:40:47 AM
REPRESENTATIVE JOHNSON suggested he could moved to adopt a
conceptual amendment which could then be put into particular
wording by Legislative Legal and Research Services.
REPRESENTATIVE COGHILL stated that he strongly objects to making
conceptual amendments to the constitution. He said he is
"somewhat sympathetic to electing the attorney general."
9:41:42 AM
REPRESENTATIVE JOHANSEN expressed his desire that the committee
wait to offer any amendments until further reviewing the history
aforementioned by Representative Coghill.
9:42:02 AM
ALEX FOOT, Intern to Representative Harry Crawford, Alaska State
Legislature, on behalf of Representative Crawford, prime sponsor
of HJR 6, offered his understanding that approximately one-third
of the delegates to the Alaska Constitutional Convention voted
in favor of electing the attorney general.
REPRESENTATIVE CRAWFORD stated his belief that Representative
Coghill had hit upon the crux of the argument: the
Constitutional Convention delegates put the power in the hands
of the governor. He said Alaska has, arguably, the most
powerful governor of all 50 states, and he believes that was a
mistake. He stated his belief that the state does not need an
imperial governorship; conversely, it needs checks on its
administration. He reiterated that he likes the idea of a slate
election, and he recalled that Representative Doll had requested
that there be term limits, which is an idea he said "would be in
order, as well."
9:44:29 AM
MR. FOOT announced, "Twenty-one states currently employ
straight-ticket voting."
9:44:45 AM
CHAIR LYNN closed public testimony.
9:44:54 AM
REPRESENTATIVE JOHNSON said he wants the opportunity to run his
amendment by Legislative Legal and Research Services before
presenting it.
9:45:36 AM
CHAIR LYNN asked Representative Doll to do the same with her
amendment. He said the committee would hold the resolution and
bring it back "fairly rapidly." He stated his intent to move
the bill in an expedient manner.
9:46:49 AM
REPRESENTATIVE GRUENBERG, "in light of the two [potential]
amendments," noted that in recent past, there was an attorney
general who was appointed by former Governor Walter J. Hickel,
continued to serve under former Governor Tony Knowles, and
served longer than eight years.
[HJR 6 was heard and held.]
9:47:28 AM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at
9:47:37 AM.
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