Legislature(2011 - 2012)BUTROVICH 205
03/16/2011 01:30 PM Senate JUDICIARY
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| Confirmation Hearing | |
| Adjourn |
* first hearing in first committee of referral
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 16, 2011
1:35 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Joe Paskvan
Senator Lesil McGuire
Senator John Coghill
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARING
Attorney General - Department of Law (DOL)
John J. Burns
- CONFIRMATION ADVANCED
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
JOHN J. BURNS, Attorney General Designee
Department of Law (DOL)
Anchorage, AK
POSITION STATEMENT: Testified as designee to the position of
Attorney General for the State of Alaska.
ACTION NARRATIVE
1:35:34 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:35 p.m. Senators Coghill,
Paskvan, McGuire, and French were present at the call to order.
Senator Wielechowski arrived soon thereafter.
^CONFIRMATION HEARING
Attorney General - Department of Law (DOL)
1:35:45 PM
CHAIR FRENCH announced the business before the committee would
be the confirmation hearing of John J. Burns for the position of
Attorney General for the State of Alaska. He expressed hope that
the new Attorney General would serve a long time, because there
is benefit to a lengthy tenure. He noted that he had submitted
questions for Mr. Burns to answer.
1:37:00 PM
JOHN J. BURNS, Attorney General Designee, Department of Law
(DOL), said he didn't seek this position but is honored to
fulfill it. As an Alaskan of 51 years, he has a commitment to
Alaska and a desire to contribute to the betterment of the
state. He grew up in Nome, and spent a lot of time in villages
such as Diomede and King Island. His family moved to Fairbanks,
where he has resided since. He is a graduate of the University
of Alaska and the Puget Sound School of Law, and for the past
twenty-five years has been an attorney in private practice. He
also served for many years as an adjunct professor of business
law at the University of Alaska Anchorage.
During the three months since his appointment, he has taken the
opportunity to travel to Bethel, Nome, and Barrow, to meet with
rural leaders, judges, law enforcement officials, and to visit
women's shelters and youth facilities with the intention of
better understanding the needs of rural communities. His
objective as attorney general is to uphold the constitution and
to enforce the laws of the State of Alaska, and to do so with
dignity and integrity, being consistent with his ethical
obligations.
1:38:18 PM
SENATOR WIELECHOWSKI joined the meeting.
1:39:55 PM
CHAIR FRENCH asked how he happened to go to law school
ATTORNEY GENERAL BURNS said his biologist father wasn't excited.
He went straight to law school from undergraduate studies. After
the first year it became enjoyable because it was a pursuit of
knowledge, unrestrained from responsibilities.
During law school he continued working during the summers with
Fish and Game in places like Scammon Bay and Hooper Bay and he
traveled the Yukon River doing subsistence surveys. After law
school he had an extended externship with Judge Rabinowitz and
was a Superior Court clerk working with four judges. This
allowed him to learn the rule of law, the procedures, and what
the judge was looking for. From there he worked at Birch Horton
with 35-40 other attorneys, primarily on financial issues. He
and a partner disassociated amicably to form a private practice.
He has always tried to be the best lawyer possible and to
improve.
1:44:59 PM
CHAIR FRENCH asked how many jury trials he has done and has he
taken any to the Ninth Circuit.
ATTORNEY GENERAL BURNS answered he has not had a case go to the
Ninth Circuit. He has had only four cases before the Alaska
Supreme Court. His was mainly a motion practice. His philosophy
is that everyone loses if you end in a trial.
CHAIR FRENCH asked who he works for in the role of attorney
general. He added that he sees it as a dual role; you work for
the governor and you work for the people.
ATTORNEY GENERAL BURNS responded he is the attorney for the
governor and the state of Alaska. His first duty is to uphold
the constitution.
CHAIR FRENCH noted he had worked in the civil arena and asked
what he views as the biggest challenge facing the civil division
and how he will address this.
ATTORNEY GENERAL BURNS said DOL has very dedicated attorneys.
This leads to the primary concern that the workforce is aging;
25-30 percent is currently eligible for retirement. When these
individuals leave, the state will be hurting. For this reason
DOL needs to recruit and mentor attorneys. This is mentoring and
succession planning. It is probably an issue that other
departments face.
1:49:29 PM
SENATOR MCGUIRE thanked AG Burns for setting up face-to-face
interviews with all legislators. He was tapped for this job and
he left a successful practice to serve the state. This is one of
the most important positions in the state and he has her
support.
She asked his plan as the state looks forward 50-100 years with
respect to resource development. The framers held the subsurface
rights in common, for the people. There has been difficulty in
recent years; oil production is down, there was a setback in the
NPRA ConocoPhillips lease, an EPA ruling that's been challenged,
and a series of land that is controlled by the federal
government. She asked what his mission will be with respect to
resource development.
1:53:07 PM
ATTORNEY GENERAL BURNS said he's met with 59 members of the
Legislature, all but the one who was rerouted by TSA.
He said it is his hope and dream that the rights and privileges
of the statehood compact can be achieved. There have been
significant issues in achieving those objectives. Litigation
ought to be the last resort. Dialogue is the only way. Most of
the state is owned by the federal government but that doesn't
mean they should lock it up. It is his firm belief that dialogue
will achieve more than litigation. He intends to dialogue with
the federal government and work with the various stakeholders to
come to some resolution. He also met with the House Finance
Committee and they discussed these issues and how to work
cooperatively.
He noted that he just returned from the National Association of
Attorneys General (NAAG) meeting and the focus was that
dialoging is of utmost importance. He also met with the Western
Attorneys General and Secretary Salazar. It will be dialogue,
but we recognize that litigation must always be an arrow in the
quiver and we must always be willing to pull that arrow from the
quiver. You can be assured that I will do whatever is consistent
with the constitution to achieve this, he stated.
1:57:29 PM
CHAIR FRENCH asked what he sees will change the aging workforce.
ATTORNEY GENERAL BURNS said we are not necessarily looking for a
younger workforce, but rather a good, solid workforce that is
dedicated and has a good work ethic. We will continue to
recruit, mentor, and retain, but most we must work through that
succession plan.
Mentoring is very important. We need to work on developing that
mentorship to provide good training in a systematic way. We will
bring in educational work programs.
Accountability is also important and we haven't kept these
statistics to date. Statistics aren't intended to show win/loss
records. Statistics are good mentoring tools.
2:00:50 PM
CHAIR FRENCH asked about the criminal division where there may
be too much turnover. He asked if Attorney General Burns sees
this as a problem.
ATTORNEY GENERAL BURNS said he's been incredibly impressed with
the attorneys in the criminal division. He spoke with Mr.
Svobodny about turnover and he can report that it is below the
national average. It is never good to lose a good attorney but
after law school they have lots of debt and can get good trial
experience and develop skills on the state's nickel. In five to
seven years many move on and there isn't much that can be done
about that other than keeping morale high and keeping the work
varied and interesting.
2:04:04 PM
SENATOR PASKVAN mentioned the statistics for retirement and said
it will be important to think about the golden handcuffs to keep
those bright young attorneys working for the state for years to
come.
ATTORNEY GENERAL BURNS said the DOL is looking into this.
2:05:15 PM
SENATOR WIELECHOWSKI asked how involved he is in the Point
Thomson negotiations. There is concern that BP and Conoco feel
left out and there is concern in the Legislature.
ATTORNEY GENERAL BURNS said the DOL is involved and aware of the
concerns raised by producers and those are being addressed. Any
resolution will be focused on the best interests of the state.
SENATOR WIELECHOWSKI said to the extent that Resources and
Judiciary members could be included he would appreciate it,
because that will have cascading affects. He is concerned that
resources on the North Slope aren't being developed even though
the producers are required to do so. He asked if Attorney
General Burns had looked into this issue.
ATTORNEY GENERAL BURNS replied the DOL is addressing this and
will try to provide a confidential overview to the Resources
Committee.
SENATOR WIELECHOWSKI asked about tribal sovereignty and
mentioned Kaltag. The tribal court issued a decision and the
state disagreed and intervened.
2:09:38 PM
ATTORNEY GENERAL BURNS said sometimes a court has to define the
issues and that's what was done in Tanana. It provides a little
clarity on the jurisdiction of tribes to deal with children. The
decision provides an opportunity to work cooperatively to ensure
that the best interests of tribal children are protected. In
Tanana some issues weren't addressed but need to be; for
example, jurisdiction over nonmembers, and jurisdiction over a
non-consenting member. He has been involved in Indian Child
Welfare Act (IQWA) memorandum of understanding and he believes
that Tanana provides a wonderful opportunity.
CHAIR FRENCH asked if he sees DOL crafting new guidelines for
the state in the face of that ruling.
ATTORNEY GENERAL BURNS said the decision mandates that but it
can't be done without dialogue. The Supreme Court could
reinstitute Child in Need of Aid (CINA) provisions, but all
parties recognize the importance of acting quickly to know what
circumstances are important. Due process rights must be
protected.
2:13:38 PM
CHAIR FRENCH asked about Kasayulie v. State and Moore v. State,
both of which deal with school funding.
ATTORNEY GENERAL BURNS said he is aware of the cases. Kasayulie
since 1997 has dealt with school construction funding. Moore on
the other hand since 2004 deals with the state's obligation to
provide quality education in all areas of the state. DOL
continues to engage in dialogue regarding those matters and is
seeking to do mediation coupled with a master to facilitate if
mediation isn't successful. He would like to bring closure to
both cases but resolution, particularly with Kasayulie, has to
do with funding, which is within the purview of the Legislature.
2:15:58 PM
SENATOR PASKVAN asked him to comment on the state's position on
intervening to establish R.S. 2477 access.
ATTORNEY GENERAL BURNS said the federal government is more
stringent now. The DNR is now prioritizing R.S. 2477 while
identifying those that have the greatest chance of success. It
is collaborative between DNR and DOL.
SENATOR WIELECHOWSKI asked him to discuss the clients he's had
and the conflicts he may have as attorney general.
ATTORNEY GENERAL BURNS said his client list is long and diverse.
The list is filed in the APOC report. DOL has reviewed the list
to determine whether or not there is a conflict. If there is he
will effectively be walled off from participation.
CHAIR FRENCH asked if he had done work for oil companies.
ATTORNEY GENERAL BURNS answered no.
CHAIR FRENCH asked about Native corporations
ATTORNEY GENERAL BURNS answered he had represented Tanana Chiefs
and Doyon, primarily over business issues.
2:20:02 PM
SENATOR WIELECHOWSKI mentioned consumer protection and price
gouging. He asked if Attorney General Burns had looked at the
report filed by a past attorney general and if he had
suggestions about the price of gasoline because many legislators
believe that there has been price gouging.
ATTORNEY GENERAL BURNS said the reports couldn't find any
illegal activity and no action was taken. The consumer
protection division of DOL advocates vigorously for consumer
rights. He doesn't have a particular recommendation because
prices are high but there is nothing tangible that would
substantiate that there is price gouging.
SENATOR WIELECHOWSKI asked him to comment on TSA pat downs and
if they might be illegal if they started in Alaska, due to the
privacy protection in our state constitution.
ATTORNEY GENERAL BURNS said he hadn't looked into the most
recent event but the department would do so and he would share
the information with the committee.
2:23:33 PM
SENATOR WIELECHOWSKI asked if he believes that the attorney
general should be elected.
ATTORNEY GENERAL BURNS said it wasn't until he was asked to
assume the role that he began to look at the issue and he can
see benefits for both sides. At the recent NAAG conference he
learned about the surprising cost of attorney general elections
and that Alaska is one of four states that appoints rather than
elects. He would prefer the attorney general to be impartial to
the politics of law, and not susceptible to political pressures.
2:25:48 PM
CHAIR FRENCH noted that in territorial years the attorney
general was elected.
SENATOR COGHILL observed that we agree when it's the attorney
general we want.
He said he's always alarmed by the number of cases that are plea
bargained. Second, in outlying areas and even in Fairbanks the
misdemeanors aren't handled very well. It looks like only felons
are subject to the law. He asked if this was accurate.
ATTORNEY GENERAL BURNS responded it's a matter of resources.
Matters are prioritized according to urgency and the greatest
risk of harm. They prosecute as many misdemeanors and felonies
as possible. Also, the department is very interested in
addressing sexual assault. Every case is evaluated independently
and the facts must be gathered in order to justify prosecution.
Some cases are pled down because the facts don't support going
forward.
2:29:15 PM
SENATOR COGHILL said the police have discretion on charging and
DOL has discretion on prosecuting and the court has discretion.
This means that a lot of cases don't even get a policeman at the
front door. He asked Attorney General Burns if he had heard of a
disparity regarding what the police are charging and what DOL is
taking to court. He asked if we are doing a good enough job of
instructing police. It seems like the tougher we get the more
resources are required.
ATTORNEY GENERAL BURNS said he has met with rural leaders and
some have indicated that they feel that DOL doesn't diligently
prosecute. As a result he is convening the Bethel Justice
Project to identify the issues. AGs are saying the quality of
the police report isn't solid, so they can't take the case to
court. He is asking if they are interfacing with the police and
following up. Again, it is important to dialogue on these
particular issues. Recently an AG was hired in Bethel and that
person plays a critical role representing DOL in that community.
That person must be the liaison between DOL, police, and rural
community leaders. The dialogue needs to be ongoing, especially
with regard to the VPSOs and the VSOs.
2:33:31 PM
CHAIR FRENCH said he appreciates this attention to Western
Alaska because the sexual assault rate, while high throughout
the state, is epidemic there. He feels that it is upstream of
DOL that the greatest gains can be made, in terms of stronger
reporting, stronger police work, faster follow up, and more
evidence collection.
SENATOR COGHILL said police work comes up during the budget
process and it's necessary to keep the dialogue open.
2:35:37 PM
CHAIR FRENCH said he asked Attorney General Burns to be prepared
to discuss the advice he gave to Governor Parnell between the
time that Judge Vinson ruled on January 31 that the Affordable
Care Act was unconstitutional and March 4 when the judge issued
a formal stay of his order. About midway through that time
period Attorney General Burns opined that the ruling was binding
law whereas a legislative legal memo from Dennis Bailey was
contrary to that perspective. He asked Attorney General Burns to
comment.
2:36:39 PM
ATTORNEY GENERAL BURNS said this is another reason that the
state benefits in having an appointed attorney general. It is
not his role to respond to issues like this; it will be
addressed by a court.
He read the following into the record:
On January 31, 2011, Judge Roger Vinson of the United
States District Court for the Northern District of
Florida granted summary judgment to the 26 state
plaintiffs challenging the Patient Protection and
Affordable Care Act. Judge Vinson's order found
unconstitutional the "individual mandate" provision of
the Affordable Care Act, which would require that
everyone, with certain limited exceptions, purchase
federally-approved health insurance or pay a penalty.
Judge Vinson held that the individual mandate is not
severable from the rest of the Act, and he therefore
declared the entire Act void.
Alaska was a party--a plaintiff--in the case, and
parties are bound by the court's judgment that the Act
is void. That is black-letter law. As agents of the
state, state officials must abide by the decision. For
this reason, Dennis Bailey's point that Judge Vinson's
order has precedential or stare decisis effect only
"in the limited territory" of the Northern District of
Florida is irrelevant. By filing this lawsuit, Alaska
submitted to the jurisdiction of the court and must
follow the court's decision. Thus, to the extent that
the Affordable Care Act requires any action or
implementation by the State of Alaska, it is "binding
law" as to the State of Alaska. The state could not
re-challenge the constitutionality of the Act in
either a state or federal court in Alaska or
elsewhere.
Of course, the case is stayed pending a decision on
appeal, so the parties are relived of the injunctive
effect of the decision until the Eleventh Circuit
decides the appeal.
With regards to the three legal principles noted in
Dennis Bailey's opinion, that opinion stated that he
believed the application of the Florida court has
stare decisis or res judicata preclusion. Again, he
disagrees with the conclusion of Leg legal that the
Federal District Court decision would not have
conclusive effect in another lawsuit between the same
litigants pending appeal in this case. District court
decisions are binding on the parties unless a stay
pending appeal is granted. An undecided appeal does
not otherwise affect a judgment's finality, which is
still binding upon the parties while an appellate
court reviews that order. The established rule in the
federal court is that a final judgment retains all of
its res judicata consequences pending the decision on
the appeal.
For this reason, I do not concur with Mr. Bailey's
conclusion that the Florida district court decision
would not have preclusive effect in another lawsuit
between the same litigants pending appeal in this
case. And Judge Vinson's clarification order made
clear that the parties were legally required to follow
the order immediately, and that they did not have
discretion to ignore it pending appeal until he issued
a stay.
As to the doctrine of full faith and credit and a
precedential effect of the decision, which were the
other points, that the Florida decision is not
available for enforcement under the full faith and
credit clause and would not have precedential effect
in a case between the parties--those statements have
no relevance to the Affordable Care litigation. It is
clear that the Florida district court will not have
the final word on the constitutionality of the act, as
the United State has appealed the case to the eleventh
circuit. It is therefore irrelevant whether another
court will give full faith and credit to the decision
while it is on appeal. The plaintiff states will not
attempt to enforce the judgment in a different court
while the Supreme Court reviews the district court
decision. It is also irrelevant that a decision by one
district court is not binding on another. In fact,
several district courts have considered the
constitutionality of this Act and have rendered
inconsistent decisions. This is one of the reasons why
the issue is likely to be decided ultimately by the
Supreme Court. The fact that a different court in a
different case--brought by different parties--might
decide the case differently does not relieve the
parties in this case from the force and effect of the
judgment made by the Florida court.
2:43:37 PM
ATTORNEY GENERAL BURNS said with due respect he disagrees with
the analysis provided by Legislative Legal Services.
CHAIR FRENCH said he wonders how the State of Alaska wound up in
a courtroom in Pensacola, Florida. It struck him as an odd
decision. In that five week period only five states, Alaska
included, took that position.
2:44:48 PM
SENATOR PASKVAN said his thought was why that jurisdiction. He
asked about the issue of forum shopping.
ATTORNEY GENERAL BURNS said he was not in a position to answer
that question; he inherited the office and the decision was
already made.
SENATOR WIELECHOWSKI said he was surprised AG Burns was taking
the position that there was no mistake made, and said
legislative counsel has disagreed with his position; most
importantly, the judge in the case disagrees. The decision has
already cost the state $1 million in lost federal funds, and may
cost more in the future.
ATTORNEY GENERAL BURNS responded Judge Vinson said the decision
was binding on the parties, and subsequently said it is going to
a higher court. He stated, "Conditioned on the Department of
Justice expediting its appeal …." AG Burns also noted there is a
difference between implementation, which is a legal question,
and funding, which is a policy question.
SENATOR WIELECHOWSKI said the state is trying to decide about
applying for federal funding and the governor relied on your
decision not to apply. He questioned why AG Burns wouldn't err
on the side of safety and apply for the funds and then return
them if need be.
ATTORNEY GENERAL BURNS said the decision was based on the fact
that the state was a party to the case. Each branch must give
due respect to the other branches. Once Judge Vinson issued the
stay, it was binding on all parties. The governor has made it
clear that he intends to implement at this juncture. That is his
obligation under the law. There is a fundamental difference
between funding and policy.
2:51:29 PM
SENATOR COGHILL said he understands the dilemma and he is
grateful that the end is in sight. He is pleased that Alaska
joined the case, although it is a slow, messy process.
SENATOR PASKVAN said that brings back the question of whether
the Legislature should be involved in the policy decision of
whether to join the suit. For a de minimus price, the state has
surrendered great policy control to a jurisdiction in Florida.
ATTORNEY GENERAL BURNS said the state is often involved in
consumer class actions and Alaska isn't brought in. Joining the
suit was a good use of resources. It's a balancing of issues and
the issue was that there was an ongoing case. It makes perfect
sense in retrospect.
2:55:34 PM
SENATOR PASKVAN asked where he believes the state can focus on
the Endangered Species Act (ESA).
ATTORNEY GENERAL BURNS said other states are interested too but
they have more budgetary constraints; they are willing to join
with Alaska. Like so many regulations the ESA is good in
concept, but the application has become problematic. DOL is
focused on addressing those issues but it will take time and the
state has to work through the federal delegation. For example,
the Stellar Sea Lion classification requires scientific data to
specify that the stocks aren't healthy and the food source is
inadequate. National Marine Fisheries Service can't determine
the cause of declines in some areas so they say they don't know,
so they'll look at human activity and they close fisheries based
on that. It's a misapplication of the ESA.
2:59:05 PM
CHAIR FRENCH asked if there was anything else the committee
should know before making this important decision.
ATTORNEY GENERAL BURNS said this is about results and doing a
good job in a department that is already excellent. He wants to
ensure that it remains excellent, and that they are always held
to the highest level of integrity.
3:00:01 PM
SENATOR WIELECHOWSKI moved to forward the name John Burns to a
the full Legislature sitting in joint session for a vote.
Without objection the name was forwarded.
3:00:21 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 3:00 p.m.
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