The Dog and Pony Show on Troopergate

Today the Senate Judiciary Committee held hearings on Attorney Talis Colberg's decision to represent 7 state employees who had been subpoenaed by a Legislative action.

The ADN writes about it here.

There is an appeal on the matter. Until it's decided, Rep Ramras, what you conducted was nothing more than a dog and pony show.

In fact, Rep. Ramras, it shows your lack of respect for the process to be concluded in the Judiciary Branch. If the seven are successful on appeal, then what.

Rep. Dahlstrom seemed to be the only one that had a grip on that fact. And it is evident that Holmes was clueless on the appeal.

Here is the Superior Court's decision.

First, the Superior Court's interpretation on the AG's argument:

AS 24.25.010(b) gives the Senate Judiciary Committee subpoena power: "A subpoena requiring the attendance of a witness before a standing or special committee of the legislature may be issued by the chairman of a committee when authorized to do so by a majority of the membership of the committee and with the concurrence of the president or the speaker, or with the concurrence of the house or the senate." Two sections, AS 24.25.010-020, govern the form and service of subpoenas. The plaintiffs do not assert the subpoenas were deficient on their face or that service was improper. If they were, the Malone decision would not apply to this argument. Malone provided some applicable limiting language: "However, except in extraordinary circumstances, as where the rights of persons who are not members of the legislature are involved, it is not the function of the judiciary to require the legislature follow its own rules." Malone, 650P.2d at 359 (emphasis added).

What the statute is saying is, that "the chairman of a committee when authorized by the majority of the membership and with the concurrence of the president or the speaker, or with the concurrence of the house and senate" can issue the subpoenas.

The question is on the language of the statute. It states that the speaker or the president has to concur. What Colberg is arguing is that the subpoenas were not properly served or carried a legal force in that the house and senate was not in session to make a ruling on the issue.

Ramras said that the issuing committee did not need the the authority of the house or senate to be in session. When looking at the language, one would have to go back and read the history on the legislation to see the intent. That should be hammered out in the appeal.

It is clear that the statute is including a least one person representing the Legislative body (i.e. Senate President or House Speaker) which would stand to reason that the Legislative body may have to be in session since the statute's intent seems to look for representation of the Legislative body.

It would stand to reason that this would keep a "special committee" from abusing it's special powers on issuing subpoenas.

The complete statute:

Sec. 24.25.010. Issuance and form of subpoena.
(a) A subpoena requiring the attendance of a witness before either house of the legislature may be issued by the president or the speaker.
(b) A subpoena requiring the attendance of a witness before a standing or special committee of the legislature may be issued by the chairman of a committee when authorized to do so by a majority of the membership of the committee and with the concurrence of the president or the speaker, or with the concurrence of the house or the senate.


Ironically, MotherJones published an article on this when it was quoted by them:

She says she is exploring various options. The subpoenas cannot be enforced while the House and Senate are out of session, and neither body is due to return to the state capitol until January. Green, who is retiring as a state senator, says she is looking into whether she could call just the Senate back.

The body could vote to instruct the attorney general to change his position; it could vote to impose punishments on those not complying with the subpoenas. But the Republican-controlled House might not be eager to return in order to inconvenience McCain's running mate. (The state Senate has a small Democratic majority; because a Democratic-Republican coalition controls the body, Green, a Republican, is Senate president.)

One issue that seems to be separate from the appeal is this:

The constitution guarantees the right to "fair and just treatment" in legislative investigations. The idea of fairness is an ambiguous and subjective concept. Fairness must be evaluated in the context of the investigation taking place. Because the legislature is a political branch, the expectations of fairness are not the same as the expectations of fairness when dealing with the judicial branch. In evaluating claims of unfair treatment by the legislature, the court must carefully balance the rights of the individuals being investigated while still respecting the province of the legislature.

Sound like a place you would want to have a subpoena?