SJR 10 ELECTION OF ATTORNEY GENERAL  TUCKERMAN BABCOCK , staff to Senator Lyda Green, prime sponsor of SJR 10, gave the following testimony. The committee has heard a heartfelt argument against electing an attorney general. The basic theory, addressed by Judge Stewart at a previous hearing, was that the idea of the branches of government is vital to the American republican form of government, and is not under attack by SJR 10. No one questions the need to have an energetic executive. The quote from The Federalist Paper No. 70 by Alexander Hamilton, referenced by Judge Stewart, has little or nothing to do with the question of an elected attorney general. Alexander Hamilton was speaking to the idea of co-equal governors, such as the pro- councils of Rome. At the time of independence, several states had councils of equal governors. There is no specific criticism of electing an attorney general in Federalist No. 70, nor in any of the Federalist papers. With a single exception, the original 13 states today choose to elect their attorneys general. TAPE 97-23, SIDE B Number 580 Mr. Babcock continued. The federal government, designed at the time of the framers of our constitutional order, has mutated. This modern federal government would be unrecognizable for many of the framers. The size, power, or intrusiveness of the federal government today was not imagined by the framers in 1787. The framers of the constitutional convention and James Madison, John Jay, and Alexander Hamilton, who wrote the Federalist papers to make the case for the adoption of the new Constitution, were motivated by a need to redesign our initial federal government, which had, up to that point, managed under the Articles of Confederation. These Articles had proven to so enfeeble the federal government, reform was essential. Mr. Babcock explained the elected executive at the federal level today is elected by a single ticket and authority is vested in a single officer. That has not proven entirely workable without some legislative amendments, the most significant being that of the office of an independent prosecutor appointed by the attorney general when there is a need to investigate the executive. We have experienced the consequences of the lack of such independence in Alaska's Department of Law. Two examples occurred during the 1980's when a Grand Jury recommended to the Legislature that they consider impeachment of the Governor, and when the possibility of corruption of some companies and officials doing business on the North Slope went largely unaddressed by Alaska's Department of Law. Mr. Babcock noted in Alaska, the Department of Law serves as the only legal counsel to each department, commission, and the Governor. It manages all criminal prosecutions, and advises and holds final authority over all regulations adopted by any agency of the Executive Branch. The attorney general's opinions, even if contradictory to earlier opinions, are the definitive instructions to state officials as to official actions. The attorney general is obligated to enforce the law, which is policy adopted by the legislative branch, but as an at-will political appointee of the Governor, his/her loyalty is not to the law but to the political dictates of the Governor. A key difference between the organization of legal counsel in Alaska and the federal government is that federal departments have their own attorneys for advice and assistance. However, when it comes time for defense in court, or prosecution, the Justice Department gets involved. This issue is not addressed by SJR 10, but is left to be addressed through the budgetary process in the Legislature. According to Mr. Babcock, an elected attorney general in Alaska would not be a co-equal with the Governor. The attorney general would simply be an independent authority whose responsibility would be to sue, defend, and prosecute on behalf of the State. The attorney general would be responsible to the people in an election for the choices made in that regard and the Governor would be responsible for the faithful execution of the laws. Mr. Babcock clarified that what Senator Green seeks to accomplish, with SJR 10, is simply to charge a directly elected official with the primary duty and sole responsibility to act in court on behalf of the State. The attorney general would have that independent authority. The function would be similar to the relationship of police and prosecutors today, except the attorney general would be responsible to the voters. As long as the Governor and attorney general would have to run as a team, it would be in the best interest of the attorney general to cooperate with the executive. Regarding an example provided by Judge Stewart about Governor Hickel's and Attorney General Cole's settlement of outstanding lawsuits with certain oil companies, Mr. Babcock said Judge Stewart feared that kind of unified policy objective would be frustrated by a Governor and an independent attorney general. They did work well together, however when a client wishes to settle, the client does not need the permission of the attorney general to settle. The Governor retains the policy call to make a settlement. The Governor can be a client of the attorney general and the attorney general's freedom consists of deciding whether to pursue the case, but only if there is a question before him. The result is not likely to be a dilution of their energy. In response to Judge Stewart's comment that several former governors liked being able to appoint their attorneys general, Mr. Babcock said what would have been more revealing is the number of elected attorneys general who have argued for appointment by governors. Mr. Babcock noted Judge Stewart was in error regarding the fact that the only direction any state has taken has been to elect their attorneys general. No state that has taken that step has chosen to return to an appointment process. Forty-three states currently elect their attorneys general. Judge Stewart was correct when he said that citizens should not expect an elected attorney general to suddenly start responding to requests from average citizens. The attorney general will remain the chief attorney for the State of Alaska, he just will no longer be an at-will employee of the Governor. Mr. Babcock discussed one theme touched on by Judge Stewart, and a primary theme of Anchorage attorney Herb Berkowitz in a recent article in The Voice of the Times, is that the opinions of the attorney general can be challenged by any citizen in court. Mr. Babcock thought that option may have existed when Alaska first became a State, but now the Department of Law can devote limitless resources defending or enforcing its opinion and most citizens cannot afford to make their point in court. Direct election and influence over who is the attorney general is a serious option. The Governor will still be able to get legal opinions, just as the Legislature does today, however from its legal counsel. When it comes to committing the State of Alaska in court, there will be an attorney general, directly elected and accountable to the people, who make that decision. Mr. Berkowitz's objection to the possibility of posturing by an elected attorney general is legitimate, however sometimes what one person considers posturing is actually responding to the desires of the people one is elected to represent. SJR 10 makes the possibility of posturing to become the next governor an unattractive option. Any attorney general will have to wait through an entire election cycle before being able to run for governor. Those opposed to the election of Alaska's attorney general claim "if it isn't broke, don't fix it." To a considerable degree, it is broken. The on-again, off-again prosecution of cases involving federal-state responsibilities is a prime example. The Attorney General's actions regarding Alaska Public Utilities Commissioner Tim Cook is another example of a system in need of repair, and can only be described as an underhanded manner in which Governor Knowles avoided legislative confirmation. Of all the arguments against electing the attorney general, Mr. Babcock said the worst is that voters are too ignorant to determine the qualifications of their attorney general. If the voters can be trusted to choose the Governor who appoints the attorney general, they can certainly be trusted to choose the attorney general. If SJR 10 is placed before the voters, the arguments will be played out in the election and the voters will decide whether it is better to maintain the current system, or whether an elected attorney general will offer something better. An attorney general, directly responsible to the voters, will focus on better protection from crime for the innocent, prosecution for the accused, and more appropriate punishment for those convicted. An attorney general directly responsible to the voters will have a singular motivation to move with vigor and commitment in challenging federal encroachment on the rights and responsibilities of the State of Alaska. Mr. Babcock concluded by saying no one is suggesting electing cabinet officers, or crippling the Governor's ability to exercise executive powers. SJR 10 gives the people the choice to elect the chief legal officer of the State of Alaska. The power to go to court on behalf of the State is an immense power. After 38 years of Statehood, it is time to give Alaskans a choice to decide whether they want that power exercised by a political at-will employee of the Governor, or by someone directly elected by the people. Number 476 SENATOR PARNELL referred to Mr. Babcock's comment about the Governor being a client of the attorney general and asked in which cases the attorney general would make the call. MR. BABCOCK replied the attorney general would have the sole discretion to go to court on behalf of the State. If the attorney general were in court on behalf of the State and the case involved issues that could be settled, the Governor, as the client, could settle those cases. SENATOR PARNELL asked if getting into court is the attorney general's call, but whether to quit or go forward is the Governor's call. MR. BABCOCK answered the Governor has the authority to settle something like a tax case. If the issue is over the constitutional relationship with the federal government, the Governor would not have the ability to deny the attorney general the ability to continue in court. Number 463 SENATOR PARNELL presumed SJR 10 would greatly enhance the powers of the attorney general in the courtroom. He asked Mr. Babcock to provide a clear delineation of the current powers of the Governor and attorney general. MR. BABCOCK replied his example was specifically related to an issue that arises out of a statutory case regarding tax payments, and in such a case the Governor can negotiate to collect those taxes before ever going to court. When it comes to whether or not the federal and state governments are properly interpreting the relationship of state and federal law, the Governor does not have the authority to stop the attorney general from acting on behalf of the State. CHAIRMAN TAYLOR stated the first paragraph of the committee substitute addresses the Governor's authority, but the phrase "brought in the name of the state" was deleted. Consequently, the Governor could not bring action in the name of the State. MR. BABCOCK said that is correct. CHAIRMAN TAYLOR noted subparagraph (c) on the top of page 3 provides that the attorney general may bring necessary and proper actions on behalf of the State. According to that provision, the Governor may wish to bring a cause of action against the federal government, but if the attorney general does not wish to do so, the cause of action will not be brought. If the Governor wishes to dismiss a cause of action brought by the attorney general against the United States, and the attorney general does not wish to dismiss the case, the cause of action would not be dismissed. MR. BABCOCK agreed with Chair Taylor's assessment. MR. BABCOCK noted the proposed committee substitute has not been adopted (version O-LSO361\F). Number 426 CHAIRMAN TAYLOR asked, in the 43 states that elect their attorneys general, if the Governor has any role in what suits are brought or dismissed, and if so, at what stage. He thought it unlikely everything is left up to the attorneys general, including advice to all departments. MR. BABCOCK said in some of the 43 states only the attorney general can act on behalf of the State. CHAIRMAN TAYLOR asked if, in those states, the attorney general controls the hiring and firing, and the advice given by every attorney who works under him/her for state agencies. MR. BABCOCK replied SJR 10 does not address that aspect; that process would be a policy call for the Legislature to make. Number 406 SENATOR PEARCE asked Mr. Babcock to explain how he envisions the process working. She asked how things would change if the attorney general was elected and decided to renegotiate the Cleary settlement, but the Governor and department heads continued to refuse to comply with the settlement and the Legislature continued to refuse to pay the fines. The attorney general could not hold the Governor and Commissioners in contempt of court so would have no hammer. MR. BABCOCK did not know, but said the attorney general would have a more direct motivation to deal responsibly with the Cleary settlement if elected but he doubted the attorney general would have any more authority to have the Governor or department heads fined or arrested than the court already has. SENATOR PEARCE asked if the Governor could file an amicus brief for either side, depending on whether he/she supports or opposes the attorney general's position. MR. BABCOCK said the Governor could not do so on behalf of the State. The relationship would be similar to that between the Governor and Legislature in federal court. He added the other option is to have multiple entities represent the State, but then no one would represent the State. SENATOR PEARCE expressed concern about taking action on this issue because it is still unclear on how the new system would work. Number 372 CHAIRMAN TAYLOR expressed concern about the "team" concept. He questioned how a team would form up around the attorney general so that each agency and department works in accordance with the attorney general's legal opinions, while the commissioners are directly appointed by the Governor. He questioned who would advise the Governor and noted fiscal notes have been submitted that include funds for a separate cadre of attorneys comparable to the entire attorney general's office. He said although he understands the sponsor's intent to have the Governor and attorney general run together to provide a commonality of philosophy, if the two took different positions on certain issues, they could spend their time thwarting each other's efforts and embarrassing each other. He noted Governor Hickel and Attorney General Cole worked well together, but split over differences in their environmental philosophies. Had Attorney General Cole been elected, many legal hurdles may have been placed before the legislature regarding how it spent Exxon Valdez settlement funds. MR. BABCOCK commented many of the concerns raised by committee members are based on the assumption that constant friction would exist between the Governor and attorney general, yet 43 states elect their attorneys general and function smoothly. This constitutional amendment is structured so that the attorney general would be clearly responsible for taking court action on behalf, or in defense, of the state, but the amount of authority given to the attorney general in advising departments, establishing regulations for program implementation, or giving opinions to the Governor would be up to the Legislature to decide. Number 314 CHAIRMAN TAYLOR stated the committee's questions are based upon the anxiety of not knowing how other systems work. MR. BABCOCK replied there is no formula used by the 43 states. CHAIRMAN TAYLOR said he understood every state probably structured their systems a little bit differently, but the committee needs an outline of the basic framework used by different states. MR. BABCOCK remarked Senator Green did not intend to address the mechanics of how the 43 other states actually operate because the Legislature has the discretion to decide on the specifics. He offered to provide an synopsis of other states' structures to committee members. He emphasized the resolution is focussed on whether or not to elect an attorney general. CHAIRMAN TAYLOR repeated the committee needs at least generalized answers as to where the state is heading with this legislation. MR. BABCOCK noted the legislature will have four to six years to prepare for the first election of an attorney general, and any polling of the public has shown 70 to 75 percent of respondents in support of the idea. He repeated there will be four to six years to make the necessary statutory adjustments to accommodate this change before an elected attorney general takes office. Number 274 CHAIRMAN TAYLOR asked Mr. Babcock how he envisions the team concept operating. MR. BABCOCK replied the attorney general would end up on the ballot in the same way the lieutenant governor does, and voters would vote for one set of executive officials. The only connection between those candidates during the primary election would be voluntary. Senator Green introduced this concept to reduce potential friction on a partisan basis between the attorney general and the Governor. It is not a system used by any of the 43 states that do elect their attorneys general. Some of those candidates are nominated by Convention and then are locked into running as a party in the general election. CHAIRMAN TAYLOR asked if the race is partisan in each of those states. MR. BABCOCK corrected himself and said the nomination aspect is purely partisan, the election is not. When nominated, the registered Republicans or Democrats in the Convention nominate the candidate, and then the candidate runs independently in the election. CHAIRMAN TAYLOR asked if the candidate runs as a Democrat or Republican. MR. BABCOCK explained the candidate runs as one or the other, but independent of the governor. CHAIRMAN TAYLOR commented several Alaskan governors and their attorneys general feuded; runing on the same ticket will not ensure a harmonious relationship among those officials. He noted there is a lot of concern at this time among committee members about the impact of this resolution, and he plans to continue to hold hearings on this issue until the committee feels more comfortable. He thanked Mr. Babcock for his presentation.