SJR 10 ELECTION OF ATTORNEY GENERAL TUCKERMAN BABCOCK , legislative aide to Senator Green, sponsor of SJR 10, told committee members he was awaiting a draft committee substitute to propose for the committee's consideration, as well as several amendments suggested by Mr. Chenoweth of the Division of Legal Services. Number 280 JIM BALDWIN , Assistant Attorney General, noted he asked Judge Stewart and Judge Buckalew, delegates to the Constitutional Convention, to address the committee on the constitutional debate on the election of the attorney general. He also provided, to committee members, a full transcript of the debate at the 1956 Convention about whether to establish positions of an attorney general and secretary of state in Alaska. He highlighted other aspects of the memorandum he sent to committee members in the following testimony. MR. BALDWIN stated the fiscal note is speculative and reflects the way the resolution was drafted. The biggest cost item stems from the fact the Attorney General's Office would be required to provide legal representation for all public corporations of the State, including the University of Alaska and the Alaska Railroad Corporation. To estimate costs, he spoke to officials in Washington State to determine how things might operate in Alaska if the attorney general is elected. SJR 10 proposes the attorney general share the general election ticket with the governor and lieutenant governor, however that does not prevent some differences of opinion between the individuals involved. In Washington State, some very closely held executive functions, now exercised by the attorney general on behalf of the Governor, such as bill drafting and clemency matters, have devolved upon an in-house counsel in the Governor's Office. The standard cost of a senior level attorney is about $150,000, including support and benefits. If this kind of situation was to be further multiplied because other principal department heads had philosophical differences with the attorney general, the cost would increase substantially. Also, several cost items are not reflected in the fiscal note because they cannot be quantified. MR. BALDWIN pointed out the attorney general would be responsible for not only civil and criminal matters under SJR 10, but also infractions and violations. Currently, that function is delegated to lay personnel in other departments. If district attorneys had to represent the State in those matters, a tremendous expense would be incurred. In summary, Mr. Baldwin stated the Department of Law does not support SJR 10. JUDGE THOMAS STEWART gave the following testimony. JUDGE STEWART: Gentleman, this is a subject that I've contemplated and been concerned about for at least 50 years and in the course of that time I have become adamantly opposed to the idea of electing the attorney general. In order to express adequately my views, it's desirable to go back to the very roots of the scheme of American government, both state and national: the idea of three separate branches with checks and balances among and between them. I propose to address the subject at several levels: the basic theory; Alaskan governmental history; personal and practical experience with the alternative systems; leading opinions of prominent students of the subject; observation on consequences of such a scheme; explanations of examples from other states; and miscellaneous observations. The basic theory is set out in The Federalist, in the papers written by Alexander Hamilton, primarily No. 70, dated March 18, 1788. "There is an idea, which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government. The enlightened well wishers to this species of government must at least hope that the supposition is destitute in foundation; since they can never admit its trials without at the same time admitting condemnation of their own principles...." It is worth noting that word "republican" with a small "r". Ours is a government of representatives, not a true democracy, which would be like a New England town meeting, where all the townspeople gather to discuss and vote on the issues. Obviously, this is not possible at the national level, nor in large cities, nor in the whole State of Alaska. The critical complex decision, such as on the structure of the executive branch, must be made by the representatives of the people, and that is you. (Judge Stewart continued reading from The Federalist.) "...Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks: it is not less essential to the steady administration of the laws, to the protection of property against those irregular and high-handed combinations, which sometimes interrupt the ordinary course of justice, to the security of liberty against the enterprises and assaults of ambition, of faction and of anarchy. A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution: and a government ill executed, whatever it may be in theory, must be in practice a bad government. The ingredients which constitute energy in the executive are unity - duration - and adequate provision for its support - competent powers. The ingredients which constitute safety in the republican sense are, a due dependence on the people - a due responsibility. Those politicians and statesmen, who have been the most celebrated for the soundness of their principles, and for the justness of their views, have declared in favor of a single executive and a numerous legislative. They have with great propriety considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand; while they have with equal propriety considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people, and to secure their privileges and interests. This unity may be destroyed in two ways; either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject in whole or in part to the control and cooperation of others, in the capacity of counsellors, to him. Of the first, the two counsels of Rome may serve as an example; of the last we shall find examples in the constitutions of several of the states."  The Constitutional Convention delegates debated this issue intensely. It was the single focus of the committee on the executive branch. In addition, the full Convention itself intensely scrutinized it for at least one full day. Committee debates during the Convention could not be recorded, therefore Mr. Baldwin's transcript is of the debate by the full Convention. The delegates were lead by George McLaughlin who said: "The blunt fact is that there is a general misconception as to the function of the attorney general. The attorney general is a lawyer and his opinion is the equivalent of any other lawyer's. It can be attacked. Any recommendation he makes, if acted upon, can always be attacked in the courts by private citizens. His opinion is barely worth the paper it is written upon. It's impressive upon the state and the officials are bound by it until some irate taxpayer attacks it and the actions taken under the authority of it, and the courts can promptly overrule it." The concept of an attorney general's opinion must not be confused with a judicial opinion. A judicial opinion covers two sides - and reviews adversarial treatment of an issue, and is binding. That does not happen in an AG's opinion - no one is bound by an attorney general's opinion.  There is a good example of the exercise of energy by the Governor. Alaska spent millions pursuing tax claims against oil companies. Governor Hickel and Attorney General Cole settled those cases through an energetic exercise of authority. That kind of energy would be frustrated if the two positions were at odds. The decision to settle was a policy decision, and a loyal attorney general executed it for the Governor. The Governor is the person charged by the people to fix and carry out state policy. The Governor is accountable to the people. An elected attorney general could undercut the Governor and hinder his ability to execute policy. If an attorney general cannot support the governor's policy, he must resign.  There are many authorities opposed to electing the attorney general. Thomas Dewey, a friend of Ernest Gruening, was defeated by Harry Truman in 1948. He came to Alaska to visit Gruening and knew statehood was sought. His advice was, from his experience as Governor of New York, "Whatever you do, do not elect the attorney general." Jay Hammond is adamantly opposed to the election of the attorney general. Recently, he was my houseguest for several days, and we discussed this matter. He said that although he was a Republican, he appointed Av Gross, a Democrat, as Attorney General, knowing of his abilities. Republicans objected, but Gross was one of the best of the attorneys general. There is a good analogy. A corporation, such as IBM, hires a CEO to fix and carry out the policies of the Board of Directors. The CEO can be likened to the Governor, while the Board of Directors to the Legislature, and the stockholders to the general public. If the chief counsel to the CEO were to be elected by the stockholders, it wouldn't work because stockholders are simply not able to determine who should be in that position. We have this big enterprise of the State. To have its chief counsel elected by thousands upon thousands of people who can't possibly know the merits of the individual candidates for elected attorney general could not possibly be a reliable determinant of who ought to be the Governor's counsel. I hear it said, "But there are 40 states that elect the Attorney General." In order to understand that, we need to look at history. Those provisions were put there in the 19th Century. It may be that there are one or two in the early part of the 20th Century, but the modern Constitutions of the 20th Century do not do that, because they have the benefit of hindsight and saw the problems that evolved from this kind of a governmental structure. Probably the leading Constitutional Convention was that of New Jersey, which I think was in 1946, and New Jersey did exactly what we subsequently did, and structured an executive branch with a single unified head who can choose who should be his associates and who then is held accountable, responsible to the electorate for what he does. As I said earlier, it's a mistaken notion somehow of democracy - that somehow the people are going to get a representation that is more democratic - small "d" - if they elect the attorney general. Believe me, it's not so. That's a failure to understand the role of the attorney general. Citizens from the street can't go in and ask the attorney general for an opinion. He would say, "That's not my job." Surely, he represents the people but he only does that through his boss, the Governor, who likewise represents the people, more broadly than he does. There's another aspect to it. If you elect the attorney general, that cuts across the entire spectrum of the executive branch. It affects the opinions that are given to each and every department, each and every functionary in the executive branch. When I was an assistant attorney general - there were two of us at the time - a gentleman named John Dimond and I were the assistant attorneys general. And we saw our boss, J. Gerald Williams, interpose his own policy ideas, inject them into the operations of the departments he was giving advice to, without any regard for what the Governor's ideas might be on that subject. Such a person is just as likely to adopt his own ideas, his own philosophy, and be no more representative of the people than the Governor is. There's a corollary to this that I don't know whether you've ever looked at. The history of Alaska, the government of Alaska, has been that the Legislature looks to the Attorney General for opinions. I'm here to suggest to you that that's wrong. You should have your own counsel. The Senate should have its own counsel; the House should have its own counsel, because sometimes the ideas of the Senate and the ideas of the House are not commensurate. You need independent legal advice. You should not be looking to the opinions of the attorney general as your authority on the law that you want to deal with. Even if you don't create a full time position, even if you only had contract counsel, you should have counsel whose loyalty is to you as his client. Any of you that have reason to consult with attorneys know that your attorney must be loyal to you, and this proposition, this SJR 10, would render the Governor having an attorney who is not loyal to him, and that simply doesn't work. It would be, in my view, one of the single most damaging things that you could possibly do to the structure of our state government, which I think has been highly successful since we became a state in 1959. That would be disrupted forever. It's not the kind of a proposition you can put out to the people. We have a republican form of government. It's your responsibility to make this decision. It's the kind of thing, maybe I have suggested to you, the degree of sophistication, historical knowledge, philosophical concepts, if you will, that are required to penetrate this maze, to get beyond that simplistic, naive statement: the attorney general represents the people. Surely he does, but through the medium of his governor, not directly. This kind of a proposition, as I say, put out to the voters at large; how can you adequately explain it? The newspapers wouldn't do it for you. The Anchorage Times had an editorial on this proposition about three weeks ago and I read it, and I became immediately, deeply concerned. It's come up not infrequently over the last 35 years. I happened to get well acquainted with a gentleman named Bill Allen, who is the CEO of VECO, also the owner of the Anchorage Times. I called - (I sat with him through several days of meetings on the Governor's Advisory Task Force on Tort Reform during the fall). I had never known him before but I got acquainted with him, so I called him and said, "Bill, I need to talk with you about this editorial. I think that you may not really understand all of the implications of what's being proposed." And so I have an appointment to sit down with him next Monday. I hope to enlighten him a little bit on all that's involved here. There's another danger, and having sat, as you people do, on a legislative committee, I'm extremely sensitive of it, and aware of it. This proposition goes to the very heart of the structure of our government. You cannot possibly adequately consider it (unless you reject it, as I hope you do) in the course of an afternoon, in the course of listening to two or three bozos like me. You cannot just talk about it. It requires careful thought and study. Let me divert for a moment. About four years ago, a little more than four years ago, there was a proposition put before the Legislature, to amend the Constitution by the initiative. This, likewise, was deeply disturbing to me because initiatives do not get the crucible of treatment that you people are able to give to legislative measures. You get bad law from the initiatives. You get bad constitutional amendments. Look at the Budget Reserve amendment. Have you tried to read that and make sense of its language? That's the kind of thing that emanates from inadequate, surface treatment of this kind of a subject. Ramona Barnes was the Speaker at the time that was introduced, and she asked Gail Phillips, and me, and a gentleman from Anchorage named Ken Jacobus, and Fran Ulmer, who was the Minority Leader of the House at the time, and I think there was maybe one other person, to sit on a committee to advise the Legislature what they should do about this proposal to amend the Constitution by the initiative. And we spent - this committee spent - a lot of time considering that, and we came up with a recommendation. I'm not suggesting that you take up that subject again, but I do think that you might be interested in the recommendation that we made, and that is that if there is a proposition like this, seriously to amend the constitution, that it should never be acted upon by the first session of the Legislature. It should be referred to, if you will, an ad hoc committee, or maybe a standing committee if you want, to consider in the interim, between the two sessions. Take it to the public, study it, scrutinize it in depth. Don't act upon it until the second session of the Legislature. If you have inclination to move this forward, and I hope you don't, I would suggest that you consider that kind of an approach in order that it get truly in-depth consideration and treatment before you willy-nilly go into restructuring what I think has been a pretty successful state government. I've talked too long, but I hope, maybe, I might have given some insight that might not ordinarily appear to the people that, I think, are making a shallow motion, here, as it were - - haven't really looked into what the history has been. Can you imagine the uproar that would occur if it were proposed on the national level - to elect the attorney general of the United States - to the President - an attorney that was not loyal to his program? There's no more reason to elect our attorney general than there is to elect the Attorney General of the United States. When Hamilton wrote what I quoted to you, and I think it's well worth your time to read The Federalist paper #70, if you really want to understand the concepts that went into this. The sound foundation for our executive branch was laid. We should not abandon it. Thank you. SENATOR TAYLOR: Thank you Judge Stewart, I appreciate you being here. I know, because you and I have discussed this many times in the past, your comments and thoughts have always been, and are, mine on this subject, and I know you were disappointed to see my name there as a co-sponsor. And I share the reverence that you have for the framework of our government and the work that our forefathers put into it, and you specifically put into it. However, Judge Stewart, in my wildest dreams, I never would have conceived of electing a governor, who by slight of hand, would prevent a Legislature from exercising its power of confirmation. That's another significant power that we have over the Governor's selection of an attorney general, and that did occur. And then to watch, and have that Attorney General appear before both joint house and senate committees, and individual committees, and admit that cases significant to the organic base of this State, the very Constitution that protects him, and the Attorney General, and to admit that those cases were dismissed, or claims not brought solely for political purposes, so motivated me that I introduced legislation over the last two years to create what I called a Constitutional Defense Council - a group of people, that when and if the Governor and his Attorney General abandon our State Constitution, that they could step in and act to protect that document. I figure that was kind of a halfway ground, at least, that might pick up, what I would hope would be rare instances. And I submit to you that this measure will do the damage that you are suggesting. I don't doubt that, but our constitutional framework in this State, in my opinion, all of that hard work that was done, and all of its predecessors, were based upon an assumption that the people who occupied that position would have integrity toward the office and the Constitution they were sworn to protect. You made reference to a statement that an Attorney General, finding himself in a compromising position between the Constitution and his Governor, should resign. And I submit to you that's correct. People of integrity would resign rather than dismiss cases for political purposes. Instead, I find today our Constitution is being used as a shield and a mirror in what appears to be a tragic game of smoke and mirrors where the Governor hides behind the AG and the AG hides behind the law. As a former attorney general told me, specifically, he said the current Attorney General loves his job more than he loves the Constitution and that frightens me greatly. I remember arguing these points with Dick Randolph, who almost 20 years ago, was trumpeting around the State with basically the same concept and I was going out front and carrying some of the same arguments that you've carried so beautifully before the committee today. But for those actions, I would never even have contemplated this desperate step because I consider it a very desperate step. And yet, to suggest that this Governor and this Attorney General will somehow be held accountable - I don't know how much more of our constitutional framework we can afford to have sold down the drain in one federal court case after another or how much of it will even be retrievable by the next Administration. How many of these decisions will become precedent against our State as we attempt to exercise the very same framework of concepts that we had. There was testimony given by this Governor before bodies of Congress in just the last year where he pledged that he would not bring any suit against Congress should they destroy the 90/10 split - one of the most organic concepts that this State was based upon in its relationship with the federal government. How long could you allow that forfeiting of that exercise of this State's rights to go on before [indisc.] is attached, before precedent is developed to the extent where no future governor could ever go back and revisit that and attempt to protect the future heritage of the State? I don't know - I don't know the answers to those questions. I consider this desperate action. I really do, and I keep in mind your comments and I really thank you so much for taking the time you have today to bring those words to us because I don't do this, or don't suggest this form of legislation lightly, but I am fearful of where we will be without it should we ever elect similar people to office. JUDGE STEWART: I can't argue with you about the particular cases. I'm not familiar with them. I'm surprised if there weren't some judicial remedy, if indeed the Attorney General, or the Governor, is violating those constitutional concepts. SENATOR TAYLOR: I think there is, but I think the only judicial remedy that is left at this point is also a desperate act, and that would be impeachment. JUDGE STEWART: And then I would say if you were to do this, this carries on... SENATOR TAYLOR: much longer than an impeachment would - I appreciate it. JUDGE STEWART: I'd be glad to answer any questions if ... SENATOR TAYLOR: Are there any questions? Yes, Senator Parnell... SENATOR PARNELL: I think I just would join you and speak for the committee in saying that you have provided some of the most thoughtful and most clear testimony of anybody I've ever heard in these committee rooms and I just want to say thank you and we appreciate hearing you. JUDGE STEWART: I appreciate your consideration. SENATOR TAYLOR: We have another very dear old friend of the law on the line - Judge Buckalew - you've been very patient. JUDGE BUCKALEW: I have nothing to add. Tom Stewart did a magnificent job, he's a real scholar and I'm perfectly satisfied with the record as is, and I can't improve on it, and I'm overparked. It's nice hearing from you, Tom. That was a great job. SENATOR TAYLOR: Seeborn, you run and catch your car and thank you ever so much and appreciate those good comments. Tuckerman, you are batting clean-up, I guess at this point. That's the only other witness I had. Did you ... SENATOR MILLER: It's kind of like following a kid's act or an animal act - you don't win. CHAIRMAN TAYLOR: It's my understanding you had some amendments being prepared. Did they arrive? MR. BABCOCK: Yes, Mr. Chairman, they did, and I gave to your staff the amendments that are incorporated what might be considered as a committee substitute, should the committee so desire. CHAIRMAN TAYLOR: If you wouldn't mind, what I would like to do at this time is, I will hold the bill until a future hearing - hopefully after we return from this five-day recess we'll bring you up first. By that time we can have a committee substitute prepared that you can work on staff with, and then go through those amendments with us and we can provide for further discussion because I realize that you were hit with a pretty good load there today and I want to give you a chance to respond or bring in such witnesses as you want to respond to that. MR. BABCOCK: Thank you Mr. Chairman. I certainly appreciate the testimony from such an honorable and venerable Alaskan as Judge Stewart and I am in no hurry - Senator Green is in no hurry to have this committee act injudiciously, or more quickly than necessary so I appreciate the added time to discuss with the committee, and with committee staff, the proposed amendments to this constitutional amendment. There being no further testimony on SJR 10, CHAIRMAN TAYLOR announced SJR 10 would be held in committee until further notice. The committee took a brief recess.