SJR 14-ELECTION OF ATTORNEY GENERAL CHAIRMAN TAYLOR introduced CSSJR 14(JUD), version 1-LS0588\H, Kurtz, dated 4/13/99. JUDGE STEWART stated this is a more complicated subject than most people recognize and one he has had deep concern for during his whole professional career. One must look to the history of the American scheme of government which is set out very expressly in the Federalists written by Alexander Hamilton and James Madison. Judge Stewart read from the Federalist Paper 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 of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. 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. Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome. There can be no need, however, to multiply arguments or examples on this head. A feeble executive implies a feeble execution of the government. A feeble execution is but another phase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single executive and a numerous legislature. 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 co-operation of others, in the capacity of counselors to him. JUDGE STEWART commented that when you look at the problem of the relationship between the AG and the governor you have to look back to this portion of American history. Alaska's state government is modeled after the federal government and a departure from this would be a serious error. JUDGE STEWART noted that a great majority of the states do elect the AG, the AG is the attorney for the people and, therefore, the people should choose him, but this is a shallow concept that does not recognize what the AG does now and should do. The history of the large majority of the states that have an elected AG is one that derives from the latter part of the 1800's--this is when their state constitutions were written. This was a populist era, it was common for the AG and many of the heads of state departments to be independently elected. This was also the history of Alaska from the time it was formed by the Organic Act in 1913 until Alaska became a state in 1959. There have been no recent states in the 19th century to elect an AG. JUDGE STEWART commented that there is and has been for many years the model state constitution that is promulgated by the League of American Cities. This constitution provides for only the governor and legislature to be elected in state government. There are many distinguished people from academic institutions that are unanimous in the view that the AG should be appointed by the governor and serve subject to his pleasure. JUDGE STEWART, having been an AG, has seen first hand how an independent AG, not having to answer to anyone except his own view of what the people might want, can disrupt the operations of the executive branch. An AG is a legal officer and should not be a policy making officer. JUDGE STEWART noted that an elected AG has an ambition to be governor and will take every step he can to make the governor look bad to enable his candidacy. This completely frustrates the fundamental idea that the executive branch should have energy and vigor. If a governor is expending his energy on fighting a subordinate rather than addressing the problems of the executive branch, the whole executive branch has lost the energy of that leadership. A legal officer should not be selected because of his popularity but for his ability. An elected AG will likely be chosen because of his popularity and what is needed is "a tough S.O.B. that can say no." Tape 00-12, Side B JUDGE STEWARD stated it is essential in the relationship between an attorney and the entity he represents that there be loyalty to that entity. Prime governmental decisions are made by the legislature-- there cannot be a statewide meeting of 500,000 people to come and analyze these issues. The people at large are not in a position to sufficiently make a wise decision on who should be a legal advisor. JUDGE STEWART addressed Senator Donley's question--how does an AG balance his loyalty between the governor and the constitution? JUDGE STEWART said the governor is bound by the constitution and his department heads are bound by the constitution, and if the department heads do not agree with the governor's interpretation, it is their responsibility to resign. Setting up a subordinate so they can override the governor's decision sets up an automatic conflict. Number 2143 CHAIRMAN TAYLOR commented that Senator Donley's question comes to the nub of the issue that has frustrated many of the legislators. In the past AG's have found themselves in philosophical disagreements with a governor and have resigned because of the disagreement. What should the legislature do when a governor abuses the constitution and his legal officer, wanting the job too much, goes along with the governor in things that are destructive? Is the only alternative impeachment? JUDGE STEWART responded, "get a new governor--he will be up for election." CHAIRMAN TAYLOR noted there are three more years left to the governor's term. JUDGE STEWART answered that you make the loudest noise you can publicly, attacking the governor on his bad decisions. CHAIRMAN TAYLOR responded it does not matter how much noise is made, the very same people will be in office for the next three years. At what point does the person who holds that office resign, and if they refuse to resign what does the legislature do? JUDGE STEWART reiterated, "you elect a new governor." SENATOR DONLEY noted that the United States Constitution requires that the President of the United States receive a majority of the electorial college votes, and yet the governor of Alaska can be elected with as few as twenty percent of the people voting for him. JUDGE STEWART stated this is a place where the law can be changed, so that the governor will be elected by a majority of the people. SENATOR DONLEY asked if Judge Stewart would support a constitutional amendment requiring the governor to be elected by a majority. JUDGE STEWART answered yes, the governor should not be elected by a plurality that is less than a majority, but it would be a serious mistake to change the structure of the government based on the bad performance of a single incumbent who will eventually be gone.