SB 69-ADVISORY VOTE ON ELECTED AG SENATOR JERRY WARD, prime sponsor of SB 69, explained the bill allows a vote of the people of Alaska to decide whether the attorney general (AG) should be an elected position. SENATOR WARD said the attorney general now works at the pleasure of the Governor, not for the people. SENATOR WARD stated that the current Attorney General made a political decision about the Babbitt subsistence case. He commented, "I don't mind those Governors having Bruce Bothelo as their Attorney General - that's fine, but I think the people should have an attorney general that represents them and the Constitution - not for political consideration." SENATOR WARD testified that he has done research and determined that all but five states have an elected attorney general. SENATOR HALFORD said he did not think SENATOR WARD'S objective could be accomplished by an amendment. He asked, "Why don't we do this by resolution and forget about the advisory vote - let the people vote on the issue." SENATOR WARD agreed it could be done that way, but he prefers for the debate to happen first. CHAIRMAN TAYLOR asked if SENATOR WARD would be willing to sponsor a committee substitute that followed SENATOR HALFORD'S suggestion. He said he would not be opposed to that. SENATOR HALFORD commented that a bill cannot be changed into a resolution in committee. Number 484 SENATOR WARD reported there is a bill to amend the Constitution "coming in from the other side." He then said, "I do want to have the debate; I can't wait 'til the current Attorney General debates with our current Judiciary Chairman on whether or not this should pass in a public arena - I think it's going to be quite interesting." SENATOR DONLEY suggested the bill contain a contingent effective date so it could serve as a fall back in case a resolution does not pass. SENATOR HALFORD noted the vote required to override a veto is the same vote required to approve a resolution. SENATOR WARD agreed and said, "I thought there were four extra votes for this . . . We are two separate bodies but I have counted and I feel very good about the people being able to debate this in an election process - a lot of people looking forward to that." MS. SUSAN FISCHETTI of Eagle River testified in support of SB 69. MS. FISCHETTI said it is important to bring Alaska into line with other states. As the sponsor of "the English initiative," she believes an advisory vote would be fair and popular and ensure the attorney general is more accountable to the people of Alaska. Number 448 MR. KEN JACOBUS opposed SB 69 but supports the idea of an elected attorney general as another check and balance within the executive branch. An elected position would give people another avenue of direct input in government, encourage participation in the political process, and result in decisions involving more compromise. MR. JACOBUS agreed with SENATOR HALFORD and encouraged the committee, "If you have the votes to put a constitutional amendment on the ballot, just put the constitutional amendment on the ballot and let the people debate it once rather than debating it twice." Number 423 MR. JIM BALDWIN, representing the Office of the Attorney General, stated the Administration does not support the bill. MR. BALDWIN did not disagree to debate the issue, but said the issue needs to be examined "head on" to see if it is in fact a good idea. According to MR. BALDWIN, the framers of Alaska's Constitution opposed the proliferation of elected offices; and believed the governor should be responsible for decision-making, not "lay off the blame for certain decisions on his subordinates . . . that's what we have now." CHAIRMAN TAYLOR asked how a person becomes attorney general and MR. BALDWIN said they are appointed by the governor and confirmed by the legislature. CHAIRMAN TAYLOR replied that is why we have not had an attorney general for four years. "He has never stood for confirmation . . . and he was required to do so . . . in direct violation, in my opinion, of the Constitution of this state. Now who do we in the Legislature turn to to enforce the Constitution of this state?" MR. BALDWIN argued that this Attorney General was confirmed by the Legislature. SENATOR HALFORD informed MR. BALDWIN he would like a written opinion on whether the Administration believes the election of the attorney general constitutes an amendment or a revision to the constitution. MR. BALDWIN replied he would convey that request. Number 352 MR. BALDWIN asserted the approach in SB 69 is not a good one. He speculated that if the 45 governors with elected attorneys general were polled, they would unanimously prefer appointed attorneys general. MR. BALDWIN urged the committee to consider the problems that occur when there is a political split between the attorney general and the governor/lieutenant governor. CHAIRMAN TAYLOR explained the Judiciary Committee is charged with reviewing proposed legislation for constitutional impacts and problems. He stated he has never before supported this measure, but the forefathers of Alaska "never would have believed we could have elected a Governor so corrupt that he would abuse the Constitution for his own political purposes." CHAIRMAN TAYLOR listed the Babbitt case, the Alaska Public Safety Information Network "scandal" and the lack of any state prosecutions in the World Plus ponzi scheme as examples where "politics has been allowed to prevail over our Constitution to the detriment of our citizens, by this Attorney General. He wanted the appointment so much that he was willing to prostitute the law and the Constitution in the way he has carried it out." CHAIRMAN TAYLOR stated this is the second Administration under which Attorney General Bothelo has refused to stand for confirmation. CHAIRMAN TAYLOR said the Legislature does not have standing in court to protect our state's rights. He concluded, "If, for any political reason, any political benefit, the decision is made on the third floor that our Constitution is to be disregarded, that our state is not to be protected . . . they (statehood rights) will not be protected." Number 268 SENATOR DONLEY asked if any states have changed from an elected attorney general to an appointed one, or vice-versa. MR. BALDWIN offered to research the question and let the committee know. SENATOR DONLEY suggested the committee should be more concerned with what the people, rather than the Governor, feel is good for the government. MR. BALDWIN said presumably the Governor, as a statewide elected official, knows the will of the public. SENATOR DONLEY said it seems the best way to find out is to take a vote. MR. BALDWIN replied taking a vote will determine what the people who turn out to vote want, not what all the people of the state want. SENATOR HALFORD asked MR. BALDWIN if he advocates returning to a more limited franchise. Number 204 SENATOR DONLEY remarked it is incredibly inconsistent of this Administration to oppose a vote on a straightforward proposition like this and to "continue the mantra of 'let the people vote' when it comes to a very complex issue like subsistence." MR. BALDWIN argued this is not a simple proposal that can be conveyed to voters via a short ballot proposition. MR. BALDWIN concluded he does not want to debate whether the people should vote on electing an attorney general, but rather that the election of an attorney general is a bad idea. Number 128 MR. AV GROSS, former Attorney General for Alaska, expressed an obligation to the office to testify on this issue. MR. GROSS agreed that most states have elected attorneys general, but said, unlike Alaska's AG, elected AG's do not prosecute crimes, control the criminal mechanism, or argue cases for departments of state. They have limited powers or, basically, no power at all. MR. GROSS proposed appointed AG's are lawyers who have an interest in politics and elected AG's are politicians who are lawyers. MR. GROSS said the election of an attorney general results in an adversarial relationship between the governor and the attorney general because the attorney general is likely to have political aspirations and the governor stands in the way. The AG often makes trouble for the governor and initiates lawsuits against him or her. MR. GROSS suggested such an adversarial situation does not work; if the governor is the sole person responsible to the people for how the executive branch of government works, the attorney general should be responsible for his or her functions as are other department heads. MR. GROSS emphasized the attorney general in Alaska can accomplish much more than AG's in other states, such as introducing uniform sentencing requirements. The AG runs a "huge law firm" and most of his functions have nothing to do with politics. Occasionally, a very political issue will come up and the AG will be called to advise the governor on the issue. As with any other client, noted MR. GROSS, the AG does the governor no favor to tell anything less than the whole truth. "If you advise the governor badly, it comes back to bite you in the worst way." TAPE 99-13, SIDE A Number 001 MR. GROSS proposed if the AG were elected, the governor would take no responsibility for crime or the legal actions of departments of state, "Which, right now, you can stick 'em with." This is what the framers wanted. MR. GROSS conceded there have been politically motivated AG's, just as there have been crooked legislators and bad commissioners. He maintained elected attorneys general would be as bad as appointed AGs; they would be selected more on their ability to get a majority vote than their reputation as attorneys. Number 044 MR. GROSS said it is no secret that people will want to elect the attorney general. He recalled how he had opposed applying the Open Meetings Act to the Legislature because he knew it would pass by an overwhelming vote, but he also knew; "The legislature needed, sometimes, a private debate . . . moments of quiet discussion away from the cameras . . . it's not politically correct but it is true." He claimed the issues are similar. MR. GROSS said the attorney general acts like another commissioner, and there is no more reason to elect the AG than there is to elect the Commissioner of Natural Resources. CHAIRMAN TAYLOR argued that the AG is not accountable to the Legislature or the people and therefore the only recourse left to the Legislature is impeachment. Number 087 MR. GROSS commented that the legislature can file suit against a decision with which it disagrees, which in fact, happened while he was attorney general. MR. GROSS conceded that past attorneys general have made stupid mistakes, but claimed they are only lawyers who enjoy public service. He illustrated an example of "the most political instance in which the attorney general was ever involved." At the end of this case, it was shown that the attorney general's office had worked in a non-political fashion. "It was a credit to the Department of Law." MR. GROSS said he hoped the Legislature wouldn't "let your irritation over a particular decision or a particular action by one person color your thinking so much you are willing to literally change the basic structure of government." Number 153 CHAIRMAN TAYLOR stated he has the utmost respect for MR. GROSS, and he has defended his position (for an appointed attorney general) for the past 13 years, but he can no longer do so due to the three examples he cited, which were "totally motivated by politics." MR. GROSS said he understood CHAIRMAN TAYLOR'S anger, but said making the attorney general run for office won't make it a less political office. CHAIRMAN TAYLOR replied he knows no other way to prevent "that type of abuse from occurring in the future." MR. GROSS responded that the governor would fire an attorney general who made a decision contrary to the popular will. CHAIRMAN TAYLOR replied, "I've not seen any concern about ethical standards, or anything else, so far, up there . . ." MR. GROSS stated "It is not a good idea to change the basic nature of the system because you are angry or upset about a particular action by someone who holds the office . . . change the person, don't change the office." CHAIRMAN TAYLOR replied, "If there were a way to do that, I would . . . unfortunately, there is not." MR. GROSS concluded his testimony by saying there have been bad people who have served as attorneys general and he thinks the people who serve will be worse if they are forced to seek the office through an election. CHAIRMAN TAYLOR thanked MR. GROSS for his testimony. With no further testimony, CHAIRMAN TAYLOR adjourned the meeting at 3:27 p.m.