HOUSE CS FOR CS FOR SENATE BILL NO. 286(JUD) An Act relating to the duties and powers of the attorney general. JIM POUND, STAFF, SENATOR ROBIN TAYLOR, explained that SB 286 was an attempt to clarify the duties of the Attorney General, place into statute that the Attorney General "shall" defend the Constitution of the State of Alaska, and put into law that the Legislative power to make appropriations constrains and limits the Attorney General's authority to settle cases. He noted that the Senate Judiciary Committee had worked closely with members of the Subcommittee on privatization and considered recommendations. The Subcommittee found that the Attorney General is not a constitutional officer and that the Legislature, by statute, may define the role and responsibilities of the head of the Department of Law. He pointed out that it was the intent of the legislation that the Attorney General defend and uphold the Constitution of the State of Alaska, and that any settlement entered into by the Attorney General, which recognizes a present or future duty or obligation on the part of the State, and not contained in statute or for which appropriations have not been provided, must expressly provide that the duty or obligation is subject to appropriation by the Legislature. Co-Chair Therriault pointed out that the sponsor had withdrawn the proposed committee substitute. [Copy on File]. Mr. Pound noted that the proposed amendment would resolve concerns addressed in the substitute. Representative Phillips asked if there was anything in the legislation that called for the election of the Attorney General. Mr. Pound replied there was not. In response to a question by Representative J. Davies regarding "common law", Mr. Pound pointed out a reference on Page 2, Line 8. He stated that language was changed in the Senate Judiciary Committee at the request of the Department. Representative J. Davies commented that was not a substantive change. Mr. Pound suggested that the amendment should resolve the problem. Vice Chair Bunde MOVED to ADOPT Amendment #1, 1-LS1512\G. [Copy on File]. Representative Bunde OBJECTED for the purpose of discussion. Mr. Pound stated that Amendment #1 would delete "or that generally . in other states"; and add, "that pertain to the Office of the Attorney General". Representative Grussendorf asked the purpose of the amendment. Mr. Pound explained that the argument was that the definition of common law refers to the common law of other states. The question rests in whether Alaska should base their law on common law dating back from the 17th century English and applies to other states. Co-Chair Therriault pointed out that the effect of the amendment is that Alaska's statutes would govern the duties of the Attorney General. Mr. Pound agreed. Representative J. Davies argued that much of state law is based on common law. If that is the intent of the amendment, he believed it was misdirected. Common law exists in this country. He noted that many court decisions are decided on the basis of what is general practice. Co-Chair Therriault observed that it would provide a list of duties. The question is whether the Attorney General would perform his duties based on other states common law or the list provided in the legislation. Representative J. Davies argued that what occurs in the committee substitute and that is further exasperated through the amendment is a change to existing statute. Representative J. Davies noted that he preferred the existing statutory language. (TAPE CHANGE, HFC 00 - 131, Side 1) Vice Chair Bunde noted his concern regarding "common law" property. He asked what the language was before the House Judiciary Committee changed it. Mr. Pound replied that the Legislature should be the ones that define the description. Representative G. Davis asked if the courts would be able to continue to use common law, and then the Attorney General would not have that authority. DEAN GUANELI, CHIEF ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, explained that the Attorney General's office worked with the House Judiciary Committee in establishing a committee substitute. He stated that it adequately strikes a balance between the sponsor's concerns and the needs of the Department. He noted that it also addresses the concerns regarding common law authority of the Attorney General. It is true that over a period of many years, the judges in other states have developed common principles about what other attorney generals can do and what authority they have. Mr. Guaneli provided Committee members with five examples where in Alaska, the Department has had to go to the Court of Appeals and relies on this provision: ? From time to time, there is a conflict in prosecuting in a particular criminal case. The attorney general appoints special prosecutors or independent counsel. There is no statute that allows the attorney general to appoint those prosecutors. He noted that recently, the defendant in a case went to the Court of Appeals and challenged the attorney general's authority to do that. Co-Chair Therriault noted that the federal government allows that. He asked if there were other places nationally that allowed it. Mr. Guaneli replied that the Court of Appeals found that authority usually pertains to the Office of the Attorney General. He added, it does not flow through statutes in other states but instead, is where the courts have found that this is power that the attorney generals have and that is necessary to carry out their public duties. ? He noted that the second item was when an Attorney General's office brought an action on behalf of a number of consumers who had bought land under a "shady" land deal. The Attorney General brought that to the Consumer Protection Law and for some reason the court held that the Consumer Protection Laws did not apply. The Attorney Generals office switched theories noting a uniform land sales act in Alaska. The Supreme Court found that under the attorney generals common law authority, they had the power to use a common law fraud action against the land developer. ? Noted that there are many crimes each year, where people allege that crimes have been committed in violation of State law. The Attorney General has the discretion not to prosecute. The authority not prosecute comes from the described provision. Vice Chair Bunde commented that the law was working under the original verbiage and then it was changed in the House Judiciary Committee. Mr. Guaneli clarified that Representative Green had a concern with that language. The general common law in this country is if the Attorney Generals states the authority, then it is something that can be done. Representative Green thought that it would be appropriate to change the language so that it would not look like we were doing something not in law. ? Mr. Guaneli noted that in cases where the State is not a party, the State is asked to file as a "friend of the court" and the State would have nothing to do with the litigation. ? The last scenario carries a fiscal impact. The strict reading of current law represents the State in which the State is a party. There are a number of lawsuits that the Attorney General defends, in which the State is not named, but an employee is. In the federal civil rights actions, they have to file against an individual; they can not file against the State. There is currently, nothing in statute that would allow the Attorney General to represent an employee of the State. The Department believes that is within their general authority to represent State employees and is included in many union contracts. The danger is that if the Attorney General is not allowed to represent State employees, and then those employees are sued, they would have to get private counsel. That could give the litigants some basis for suing the State later. Mr. Guaneli pointed out that there is a statute that stipulates that common law governs in the State of Alaska, except where it has been specifically over-ridden in statute. The danger of removing the common law powers of the Attorney General is that all circumstances will be "caught" where the Attorney General will need to rely on some common law authority. He emphasized that the Department of Law becomes involved in every-kind of case imaginable and the purposed language would force giving up important rights and authority of the Attorney General. Mr. Guaneli added that the Attorney General is not a constitutional officer, therefore, the Legislature does have authority to set the powers of the Attorney General. The Governor is a constitutional officer. He noted that there is a provision in the Constitution, Article 3, Section 16, which imposes upon the Governor, the obligation to initiate legal action to uphold the constitutional laws of the State of Alaska to protect its' people. The governors do not do that on their own, but instead, do it through the attorney general. To take away the powers of the Attorney General that are necessary to uphold the governor's legal authority may be beyond the power of the Legislature. He clarified that if the legislation passes, it will result in more litigation. Mr. Guaneli reiterated that the Department is satisfied with the House Judiciary Committee version of the legislation. Representative J. Davies asked if generally, the courts had read the existing statutory language consistently with the House Judiciary amendment. Mr. Guaneli replied that was the way that the Courts had interrupted it. Representative J. Davies noted that a court might ask why the Legislature changed the language. He commented that the existing language was clear. Mr. Guaneli interjected that the wording he had suggested to the House Judiciary Committee was that "the powers that usually pertain to the Office of the State Attorney General". That language is the key for what is generally necessary for an office of the State Attorney General to carry out their public protection duties. Representative Phillips emphasized that the current system is not broken. Co-Chair Therriault noted that Amendment #1 was the MOTION before Committee members. A roll call vote was taken on the motion. IN FAVOR: Grussendorf, Phillips, Williams, Bunde, J. Davies, G. Davis, Foster, Therriault OPPOSED: -0- Representative Moses, Representative Austerman and Co-Chair Mulder were not present for the vote. The MOTION FAILED (0-8). Vice Chair Bunde MOVED to ADOPT a conceptual amendment on Page 2, Lines 8-10, returning the bill to the original language. Representative G. Davis OBJECTED. He noted that it had passed the House Judiciary Committee and that legal counsel had recommended the change. A roll call vote was taken on the motion. IN FAVOR: Phillips, Williams, Austerman, Bunde, J. Davies, Grussendorf OPPOSED: Foster, G. Davis, Therriault Representative Moses and Co-Chair Mulder were not present for the vote. The MOTION FAILED (6-3). Representative Foster MOVED to report HCS CS SB 286 (FIN) out of Committee with individual recommendations and with the accompanying fiscal note. There being NO OBJECTION, it was so ordered. HCS CS SB 286 (FIN) was reported out of Committee with a "no recommendation" and with a fiscal note by the Department of Law dated 3/23/00. MARK JOHNSON, (TESTIFIED VIA TELECONFERENCE), ANCHORAGE, commented that the fundamental principle that the language be eliminated from existing law stems from the notion that the powers of the Attorney General's office stem from the constitutional statutes of Alaska. He stated, what is currently in law is an open-ended invitation for the Attorney General to initiate litigation for a whole array of subjects. Mr. Johnson argued that if left as it stands, it would only be a matter of time before the Department of Law had an issue that they feel strongly about but that the Legislature did not support. He stated that he did not support deletion of the language adopted by the Committee.