Legislature(2015 - 2016)BELTZ 105 (TSBldg)
04/04/2016 01:30 PM Senate JUDICIARY
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SJR 12-CONST. AM: ELECTED ATTORNEY GENERAL 1:33:54 PM CHAIR MCGUIRE announced the consideration of SJR 12. She asked Senator Stoltze to introduce his legislation. 1:34:07 PM SENATOR BILL STOLTZE, Alaska State Legislature, Juneau, Alaska, sponsor of SJR 12, said this legislation is based on the belief that the attorney general should be an elected position. The office should serve the people of Alaska, not a body politic. He clarified this is not a reflection on any past, present, or future attorney general. It is a systemic change he believes the people will embrace, given the opportunity to vote on it in a general election. He noted that three members heard this bill very recently in the Senate State Affairs Committee. SENATOR STOLTZE said he agrees with former Governor William Egan who said during the Constitutional Convention: "I'm in favor of a strong executive branch of government in order that the people might ever be able to place the finger of responsibility without buck passing. One office, I feel, should most certainly remain elective is that of the state attorney general. It would seem to me that this would provide a safeguard against a strong chief executive usurping the powers of the office." SENATOR STOLTZE opined that the constitution is good but would be stronger and the people better served if the chief law enforcement officer works for the people. It is within the governor's power to obtain his/her own legal advice and representation. He said that is an opinion he believes is shared by many. He summarized that SJR 12 calls for amending the Constitution of the State of Alaska to make the attorney general an elected position. This would need to go before the voters in a general election and he believes a majority would support it. 1:44:04 PM CHAIR MCGUIRE noted the chart in the packets showing current governors and the method of selecting their attorney general. She highlighted that just seven states have an attorney general that is not elected by the people. She noted that in six of seven instances the governor and the attorney general are of the same party. Alaska is the exception. She opined that is no accident which indicates that the office is already politicized. She agreed with the sponsor that the governor has the power to obtain his/her own legal counsel. She expressed concern that, at some point, there will not be enough ethical space between the two offices. She expressed her desire to move the bill today. 1:47:43 PM SENATOR COSTELLO asked the sponsor to discuss the concerns that have been raised. SENATOR STOLTZE said some of the comments have been: if the constitution isn't broken don't fix it, the constitution is a perfect document, and it would politicize the process. He said he believes he has responded to those concerns, but he can't respond to the philosophical concerns. SENATOR COSTELLO asked if he sees any problem associated with the attorney general trying to raise money for an election at the same time people are trying to influence the outcome of a particular issue. SENATOR STOLTZE said he thinks there already is a political process at work under the current system. He commented on previous attorneys general, some of whom he believes were outstanding. SENATOR COSTELLO asked, of the states that have an elected attorney general, was that process in place at the time of statehood. SENATOR STOLTZE said he doesn't recall, but the history is primarily elected offices in the U.S. 1:51:48 PM SENATOR COSTELLO asked if he would prefer the attorney general to be elected if he were governor. SENATOR STOLTZE answered yes. 1:52:43 PM SENATOR WIELECHOWSKI asked if the attorney general should be a nonpartisan position. SENATOR STOLTZE replied it's a policy consideration. He added that in the past he's proposed making the person ineligible to run for a statewide office for a few years after serving. SENATOR COSTELLO asked if the attorney general currently takes an oath. SENATOR STOLTZE replied all cabinet positions take an oath, but they also have strong cannons of ethics for serving their clients. He assumes the constitutional oath is the overriding one, but he doesn't know. CHAIR MCGUIRE assumed that an elected attorney general would be subject to the Executive Ethics Act. 1:54:51 PM SENATOR COGHILL opined there probably would be diminishing authority for the governor if the attorney general were elected. He encouraged the members to read Federalist Number 10 as a reminder that faction is a danger. He asked the sponsor how he contemplates the people's attorney on the administration of law. SENATOR STOLTZE pointed out that the attorney general's office has been reticent to put out legal written opinions on the crime bill, and he believes that is a responsibility of the Department of Law. He opined that if the attorney general were elected, they would have open public discussions. In the area of consumer protection he believes an elected attorney general would be a more vigorous advocate. An elected office removes the temptation to protect the governor first and perhaps overlook indiscretion. He also mentioned initiatives that the Department of Law doesn't get involved in even though there is a strong public interest to investigate. SENATOR COGHILL offered his belief that the attorney general has become the governor's attorney which strengthens the governor's power. SENATOR STOLTZE added that one attorney general opinion can accomplish something that takes the legislature many steps. That's a strong power for the governor's "legal handmaiden," he said. SENATOR COGHILL said that point was argued in the Constitutional Convention and the attorney general's opinion has become ex post facto law. 2:01:33 PM SENATOR WIELECHOWSKI asked if he envisions this position residing in the executive branch and sitting in on cabinet meetings. He commented that this seems to set up another branch of government. SENATOR STOLTZE said it creates a third constitutional officer and whether or not the person is invited into the cabinet meetings will be up to the governor. He said he wouldn't call it another branch of government any more than the lieutenant governor is identified as such. SENATOR WIELECHOWSKI asked if he envisions both the governor and the attorney general being able to file suits if they disagree on a legal matter. SENATOR STOLTZE said the attorney general would be the chief law enforcement officer but it doesn't diminish the governor's legal ability. He would, however, need to use his own attorney or seek outside counsel. He advised that many of these questions will be resolved through enabling statutes. 2:04:53 PM SENATOR MICCICHE joined the meeting. SENATOR WIELECHOWSKI asked if he envisions an additional fiscal note because it seems that there would be a substantial cost. SENATOR STOLTZE replied the division has said it will absorb the cost of a constitutional amendment. He can envision additional costs but it's difficult to foresee what they would be. It would depend on the governor and the counsel he desires. SENATOR WIELECHOWSKI reviewed the requirements and questioned whether there should be a requirement for some experience as an attorney before becoming attorney general. SENATOR STOLTZE replied those are virtually the same requirements as for other constitutional officers, except for the requirement to be a member of the Alaska Bar. He opined that the voters will look at the qualifications. CHAIR MCGUIRE asked the circumstances that Hollis French did not meet the requirements. SENATOR STOLTZE said the Judicial Council ruled him ineligible because he had not been out of state legislative service for a year. SENATOR WIELECHOWSKI added that he let his law license go inactive and the Judicial Council ruled he had to have been actively practicing law for a year prior to application. SENATOR STOLTZE said the people should be able to make the decision about qualifications. 2:10:06 PM SENATOR COGHILL commented on the current vetting process that gives deference to the governor to the extent possible. With an elected position, the vetting would be with the people and thus much broader. SENATOR MICCICHE asked how many states elect their attorney general and how many states have an appointment process. SENATOR STOLTZE said 43 states elect their attorney general, 2 have an alternative selection process, and 5 states have an attorney general appointed by the chief executive. CHAIR MCGUIRE asked if there were any amendments. 2:12:41 PM SENATOR WIELECHOWSKI moved Conceptual Amendment 1 to elect the attorney general through a nonpartisan election. SENATOR COGHILL objected. He opined that a nonpartisan election won't take the philosophical discussion out of the debate. He said it's appropriate to give people the opportunity to identify with a particular group, just as other constitutional officers do. He added that it is important to have an alignment of interests. SENATOR WIELECHOWSKI said he believes people are tired of party politics and everything possible should be done to remove party politics from elections. Should this pass, this is an opportunity to create a new position in the constitution that isn't affiliated with a political party. "If the idea is to make this less political, let's make it less political by having it a nonpartisan position. That makes common sense," he said. SENATOR COGHILL clarified that he did not say party; he said you could pick the label you want to run under. SENATOR MICCICHE asked Senator Wielechowski his vision of a nonpartisan election. SENATOR WIELECHOWSKI said there would be no primary; anyone who wanted to run would automatically go on the general election ballot and individuals wouldn't be identified by political party. This would give the voters an opportunity to discover what the individuals intend to do if elected. It's a powerful position and shouldn't be based on a political party. SENATOR MICCICHE expressed agreement with the idea of a nonpartisan election and concern about the mechanics of accomplishing it. 2:18:04 PM At ease 2:20:15 PM CHAIR MCGUIRE reconvened the meeting and recapped the discussion on Conceptual Amendment 1 for SJR 12. SENATOR COGHILL requested the amendment in writing. SENATOR STOLTZE concurred. CHAIR MCGUIRE asked Senator Wielechowski if he would withdraw the amendment. 2:21:21 PM SENATOR WIELECHOWSKI withdrew Amendment 1. 2:21:36 PM LAURA BONNER, representing herself, testified in opposition to SJR 12. She said Alaskans already have a voice; they elect the governor who appoints the attorney general. Alaskans also have the opportunity to contact legislators during the confirmation process if they don't agree with the governor's appointment. She opined that it was the intent of the delegates of the Constitutional Convention that the attorney general would be the governor's counsel and therefore compatible with the governor. She questioned what branch of government the attorney general would belong to and how would he/she be removed if needed. 2:24:15 PM CHAIR MCGUIRE held SJR 12 in committee.