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The AG Discussion: 'Outrage Versus Facts in the Time of Incivility'

 
CarlHartmann
(@CarlHartmann)
Advanced Member

These days the rhetoric of news reporting and politics is chock full of histrionics. Everyone is said to be “outraged” and all participants either villains or heros. If I don’t agree with you, it is obvious that you hate God or America or are simply a fool. Like the rest of the country, the Virgin Islands is susceptible to the cheap, sensational discourse of polarization and division – a landscape where no idea can be discussed as having two equally valid, though opposing positions.

The most recent example of this is the back-and-forth regarding the desirability of electing versus appointing an Attorney General. Because I am old, a lawyer and have been in the VI for a long time, I have known many of the past Attorneys General both here and elsewhere--and several of the new ones. Some were very good and some weren’t. Some were partisan and others not so much. But the demonization and counter-demonization of the ‘elect v. appoint’ viewpoints is wholly unnecessary. To assume that "corruption" drives the other viewpoint is counter-productive. There are real arguments for and against both positions and rather than heated name-calling and finger-pointing, perhaps the best course here is a fact-based discussion.

OTHER PLACES

Attorneys general are popularly elected in 43 states and in the District of Columbia and Guam. In Alaska, Hawaii, New Hampshire, New Jersey and Wyoming, as well as in the USVI and the other territories, the attorney general is appointed by the governor. The attorneys general of Maine and of Tennessee are elected by the Maine Legislature and by the Tennessee Supreme Court, respectively. (“About NAAG", National Association of Attorneys General. http://www.naag.org/about_naag.php , retrieved 24 January 2013.) So we have four models to consider.

MORE INDEPENDENT? Really?

An elected AG is political, and in most places that means a member of a political party. S/he is subject to all of the normal political pressures – fund-raising, elections, party loyalty and pressure from constituents. By the same token an appointed AG is beholden to the Governor, legislature or Court (as in Tennessee) that selected and can replace them. Is one more independent than the other? Is one better or worse than the other?

THE SOLUTION MAY LIE IN WHAT YOU WANT THE AG TO BE

Is the AG the chief legal officer of the government – its representative in criminal and civil matters? Is the AG a watchdog to insure that the government administration is not up to political shenanigans? Or is the AG supposed to be both? Somebody needs to represent the government. Somebody has to have the confidence and cooperation of the Governor. Should that person be the same individual providing the watchdog function to assure that the administration is doing everything correctly?

You hear the Ex-US Atty for the District of the VI and others suggest that appointment breeds corruption--the watchdog function should be preeminent. Others contend that strengthened and independent inspectors general (at the VI and federal level) should provide this--so that the Governor and administration have counsel they can confide in and trust without divided loyalties or rancor. How effective can your lawyer be if s/he wants your job, works for the other side or cannot be told things in confidence?

WHICH IS RIGHT ?

As with many political questions, neither side has a valid claim to history, God, common-sense or the Truth. There are entirely valid positions for all four forms of selection presently in use. The desire for each State to decide this is why the United States is a republic where each State can discuss and decide these things. (We have a sort of limited right to do so under Article IV and the Revised Organic Act....but that is another story.) In the end, it is up to the people to decide. But wouldn’t it be better to discuss pros and cons of the options, look into the real-world successes and failures as the basis for such a decision rather than indulge in heated rhetoric where the other side is always corrupt or evil--and we are all outraged most of the time?

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Topic starter Posted : August 8, 2015 4:10 pm
Exit Zero
(@exit-zero)
Trusted Member Registered

Well written explanation - as I would expect from a long time legal mind.
Thank You and I hope the current AG situation can be resolved to the benefit of the VI - both for the people and the government sector.

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Posted : August 8, 2015 5:07 pm
ms411
(@ms411)
Expert

Thanks, Carl. Very informative as always, and I really appreciate how you volunteer to educate us so we can be better informed citizens.

How, though, are you determining a good vs bad AG? What would alert a citizen that an AG is bad?

I know a PA AG has been in the news recently for something, but didn't pay much attention because it wasn't local. But, I think she came under scrutiny because of Federal oversight for some reason.

In the meantime, I'll be googling so I will be better informed.

Thanks, again!

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Posted : August 8, 2015 7:10 pm
StCroixBeachBoy
(@StCroixBeachBoy)
Advanced Member

Thank you Carl for this well presented point of view. I've always thought Paul Murphy's arguments made sense, but this certainly puts things in perspective.

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Posted : August 9, 2015 11:48 am
CarlHartmann
(@CarlHartmann)
Advanced Member

Two good points:

How, though, are you determining a good vs bad AG? What would alert a citizen that an AG is bad?

and

I've always thought Paul Murphy's arguments made sense, but this certainly puts things in perspective.

This may, at first, seem an off-topic response....but it is a roundabout way of responding to both of these points. Lawyers are hired to give advice about their expertise in law -- and to 'zealously advocate' for their clients. (The "zealously" concept is part of the Code of Ethics.) And we all know that while everyone says that lawyers should be nicer and act in a more civil manner -- when a lot of money or custody of the kids is involved, almost everyone pushes to have the meanest, ugliest attorney possible.

This leads lawyers into two traps -- first, they often confuse effectiveness with histrionics and a belligerent tone. This confusion leads them to unnecessary and unproductive hostility and intemperate remarks. I have been on the side of, and litigated against Gordon Rhea, who is without doubt one of the most effective lawyers in the USVI. But I have never heard him call another lawyer a name or raise his voice. I have never heard him call any public official or judge who ruled against him "corrupt." But he almost always beats the other side and wins a LOT. So while amped up rhetoric and mudslinging CAN work, it is frequently unnecessary and often counter-productive. It almost always drowns out the facts and the real arguments.

The second big mistake is giving advice on non-law matters: be they business, personal or political. The trap here is that "I'm smart and people listen to me....so my advice on other things should be important and listened to as well." If lawyers were great at business, they'd be Bill Gates -- and most are absolutely NOT.

So.....Back to what makes a good AG and how to tell if the AG is acting badly. For the reasons above, that is not for lawyers or politicians or judges to tell you. As I have said repeatedly here: DO NOT RELY ON THE PRESS OR ANYONE ELSE to properly inform you. Try to find out how to get and read source documents such as legal cases. (All federal and VI Supreme Court cases are on line.) Always ask for a reference or the source of a fact. Never accept "everyone knows." Certainly you can rely on a trusted source that has proven accurate in comparison to what you have found out.........but is my opinion any more accurate than anyone else's? And once you have the facts....have a fact-based discussion and don't be led off the path by empty rhetoric or inflammatory (but empty) assertions of the "truth."

So what makes a good or bad AG? It depends almost entirely on who is asking the question. Are you the Governor who wants confidential legal advice or someone who is more concerned that the Governor be watched for wrongdoing? Is the AG the government's zealous advocate, enforcing the laws while advancing the policy agenda? Or is s/he the watchdog who is trying to catch the administration in the act?

I greatly respect Paul Murphy, he is a smart and relentlessly committed person. I also know and respect Ex-AG Diase-Coffelt (and have for a long time). I believe that they both honestly believe that the AG here should be a check on the administration and Governor. This is ONE valid view of what the AG should do. If you believe this, you might want an elected AG. A bad AG is one who fails to do this.

I also have known Ken Mapp forever (and once represented him in his capacity as Lt. Gov. a long time ago.) He has lived at our condo complex on STX for many years and has been on the condo's board. I cannot speak for him, nor have I discussed this with him--but I'm just as certain that he would like an AG who will zealously represent his administration and the government as it tries to implement policies he was elected to put in place. I can see why he would want to choose his own advocate -- and have that person keep his confidences. A bad AG is one who fails to do this.

So which group is right? Paul Murphy is (at the center of his very being--believe me) a prosecutor. His job has been to correct ills and ferret out wrongs. Ken Mapp is a politician and at their roots, politicians want to move an agenda and create prosperity by getting things done without having the chief legal officer be an opponent.

Can a single office do both jobs? If so, should the VI Supreme Court appoint the person -- just as they appoint the Disciplinary Counsel? Or the legislature? Or should the AG be the government's lawyer and some other position, such as the IG, be the watchdog and have enhanced prosecution powers? To put this another way: WHEN AND WHERE ARE WE GOING TO HAVE THE REAL DISCUSSION without the DRAMA? Tough, huh? A hard choice. Right? But you should make the decisions based on what actually needs to get done -- on how you want things to work.....not based on a bunch of tit-for-tat and name calling. Is there a happy medium?

My opinion on who is correct here is.............well, not really that relevant....is it ? It is yours that counts.

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Topic starter Posted : August 9, 2015 3:27 pm
ms411
(@ms411)
Expert

Thanks solo much, Carl! Excellent explanation as usual. The Organic Act needs amending if we want to elect AG. Or, just ignore it and do what the local government wants to do. 🙂

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Posted : August 9, 2015 5:03 pm
monogram
(@monogram)
Advanced Member

Carl's position is disingenuous. While it is true that 5 states have appointed attorneys general, those states also have county-based elected prosecutors who can (and do) prosecute government officials (see Gov. Rick Perry in Texas, who was charged by a county prosecutor). In the V.I., there is no other local prosecutorial authority other than the AG. So, if the AG is merely the governor's hack (you would say, advisor), it means that there are no prosecutorial checks against illegal behavior by the governor.

Also, in none of the "appointed" states does the Governor have the authority to hire and fire run-of-the-mill prosecutors or pull them off a case. The V.I.'s system is the most extreme under the U.S. flag.

I expected more thoroughness in Carl's analysis; it's embarrassing that this work comes from a member of the Bar.

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Posted : August 14, 2015 4:32 am
ms411
(@ms411)
Expert

Thanks for posting, monogram. I appreciate those who share their expertise so that we can become more informed.

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Posted : August 14, 2015 9:40 am
CarlHartmann
(@CarlHartmann)
Advanced Member

In the V.I., there is no other local prosecutorial authority other than the AG. So, if the AG is merely the governor's hack (you would say, advisor), it means that there are no prosecutorial checks against illegal behavior by the governor.

First, I'm not sure I suggested that any one method would be better than another. But, for the sake of discussion, assume I did. I think there is a bit of confusion here in the distinction between a State and a Territory. The statement that "there is no other 'local' prosecutor" to provide a check has diminished meaning in an Article IV territory. The USVI is created solely by Article IV authority -- and thus its operation is subject to several checks and balances that while they are "federal" in origin act just as effectively and with even greater authority than a county prosecutor as to our "local" oversight. We have (in no particular order): (1) The US Dept of the Interior, and its IG -- which has and has exercised significant oversight, (2) the US Congress and the Insular Affairs Sub-Committee (ditto), and (3) the IRS (Under the Organic Act for all tax matters). (ditto).

Second, and more important, I believe I conceded the point you seem to be making -- that if the AG is seen as the advocate for the administration, it may be wise to have a secondary check. I noted " Or should the AG be the government's lawyer and some other position, such as the IG, be the watchdog and have enhanced prosecution powers?"

In any case -- my original point stands. Neither side is all right or wrong. Neither side has a claim to truth or God. Both sides have valid positions......and that there should be a discussion (such as the point you raise) rather than ill-informed, hot-tempered rhetoric all of the time.

Finally, and most important, I soundly reject your proposition:

Also, in none of the "appointed" states does the Governor have the authority to hire and fire run-of-the-mill prosecutors or pull them off a case. The V.I.'s system is the most extreme under the U.S. flag.

In both the federal and many state systems, the AG serves at the pleasure....and may be removed. S/he supervises those below him/her. The USVI system of having the AG serve at the pleasure of the Governor and being terminable on an instant's notice if there is a "disagreement" as to how things should be done is not extreme in comparison to other jurisdictions at all.

The office of Attorney General was established by Congress by the Judiciary Act of 1789. The original duties of this officer were "to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the president of the United States, or when requested by the heads of any of the departments."[1] Only in 1870 was the Department of Justice established to support the attorney general in the discharge of their responsibilities. The Attorney General, the Secretary of State, the Secretary of the Treasury, and the Secretary of Defense are generally regarded as the four most important cabinet officials because of the importance of their departments

The attorney general is nominated by the President of the United States and takes office after confirmation by the United States Senate. He or she serves at the pleasure of the president and can be removed by the president at any time; the attorney general is also subject to impeachment by the House of Representatives and trial in the Senate for "treason, bribery, and other high crimes and misdemeanors."

Also, as to states, see, e.g.,

The Attorney General is the principal executive officer of the Alaska Department of Law, and is appointed by the governor. He "serves as the legal adviser for the governor and other state officers, prosecutes all violations of state criminal law, and enforces the consumer protection and unfair trade practices laws. Alaska Department of Law, "About the Department of Law," accessed June 1, 2011. . . . .There are no term limits for the office of attorney general. The officeholder serves at the pleasure of the governor. http://ballotpedia.org/Attorney_General_of_Alaska, accessed August 2015.

(I use Alaska as an example because many of our statutes and a good deal of the legal history of the USVI can be traced there. Cifre v. Daas Enterprises, Inc., No. ST-2012-CV-701, 2015 WL 1912709, at *11 (V.I. Super. Apr. 24, 2015) ("See Bermudez, 54 V.I. at 187–93 (summarizing the history of the Virgin Islands' private nuisance statute and the judicial opinions from Alaska that interpreted the statute on which the Virgin Islands' private nuisance statute is patterned).")

Conclusion

So if one believes that the USVI system is different (especially in a bad or corrupt way) based on these misconceptions -- it is easy to see why one might fall into the trap of assuming that one side or the other in this discussion is bad or wrong. But once the facts are clear, it is neither unusual or pejorative in any sense.....just a disagreement that should be discussed.

Again we should be having the discussion rather than raising our voices in outrage before the facts are clear.

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Topic starter Posted : August 14, 2015 4:45 pm
monogram
(@monogram)
Advanced Member

It is hard to believe that you are seriously advancing these arguments, even if only arguendo. You cherry pick Alaska (the only state in which the Governor can remove the AG at will), but fail to mention that Alaska has regional district attorney's offices that prosecute offenses. Additionally, Alaska is widely considered to be a state with undeveloped and insufficient law (ask the droves of young law clerks from top schools who clerk there in order to help "create" law). That you would use our reliance on a few cases interpreting nuisance law as evidence that we should rely on Alaskan law is laughable. Most importantly, neither the Alaksan governor nor the President of the United States may remove prosecutors from a case or fire line prosecutors. In fact, none of the states that allow for the appointment of the state AG allow the governor to fire line prosecutors. Most of those states don't even allow the Governor to remove his own AG.

While it is true that NJ, NH, HI, and WY have appointed attorneys general, those officials are still independent from their sitting governors. For example,

The appointed NJ AG may only be removed for good cause:
https://en.wikipedia.org/wiki/New_Jersey_Attorney_General

The appointed Hawaii AG can only be removed through impeachment by the Senate:
https://en.wikipedia.org/wiki/Attorney_General_of_Hawaii

The appointed NH AG serves a longer term than the Governor, and even her deputies may only be fired for cause/malfeasance:
http://www.gencourt.state.nh.us/rsa/html/I/21-M/21-M-3.htm

Wyoming and Alaska appear to be the only states in the U.S. in which the Governor appoints and can remove the AG. But in Wyoming, the governor may not fire line prosecutors. From the Wyoming Code:
"Each assistant attorney general shall be a member in good standing of the Wyoming bar and shall serve at the pleasure of the attorney general. The assistants shall act under the direction of the attorney general and his deputies."
See http://legisweb.state.wy.us/statutes/statutes.aspx?file=titles/Title9/Title9.htm

Readers, please do not let Carl confuse you. He knows better than this. He picked the ONE STATE in the union that has this wacky system to convince you that it is arguably desirable. Don't be fooled.

Carl's misguided comparison to the federal system (the argument that "the President can remove the federal Attorney General, so we should allow the same!") is specious at best.

The Constitution provides that the executive power of the United States is vested in the President. Allowing any state official to remove the federal AG would violate the Supremacy Clause. More importantly, it is still unclear (most law professors are confused) whether a sitting President of the United States may be prosecuted.

Sidenote: [As a practical matter, the President generally does not get involved in Department of Justice decisions. Most Presidents have learned from Nixon's mistakes, and do not politicize the federal Attorney General or the DOJ (remember the backlash when the Bush administration fired all those U.S. Attorneys?). It's just not done.]

Either way, there are sufficient checks against the President if he decides to violate the law. He may be impeached at any time by the Congress for virtually any reason, and such an action (impeachment) cannot be challenged in the courts.

In the V.I., there is no impeachment provision in the Organic Act. As such, the legislature is deprived of arguably the most important check afforded to the Congress and every single state legislature--the power of impeachment of corrupt officials. Allow me to put it simply in an equation: Appointed AG + Power to Remove AG and any prosecutor at any time + No impeachment power by legislature = the most powerful governor under the U.S. flag. It is no coincidence that we are plagued by corruption. Our system encourages it.

Finally, Carl's argument that the local and federal IGs offices serve as a sufficient check against illegal acts by a V.I. governor are equally funny. When was the last time the IG's (fed or local) opinion has curtailed a governor's actions? DeJongh laughed at the federal IG report that his administration stole public funds to build up his house. No teeth at all, ever. They have no authority to remove or jail a V.I. governor. The readers know better. There is simply no reasonable basis for any person to assert Carl's arguments. Our current structure violates every principle of democracy and modern governance. To support it is to support tyranny. This is not a "see both sides" type of argument, despite what Mapp's friends will argue. Forty-nine states restrict the governor's authority to remove attorneys general. Not one single state in the U.S. allows a sitting governor to fire line prosecutors or move them off of a case. Not a single state allows for this type of undemocratic meddling in prosecutorial affairs. We should get in line.

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Posted : August 14, 2015 5:48 pm
CarlHartmann
(@CarlHartmann)
Advanced Member

The Governor here has exactly the same authority with regard to AG's (and less as to Asst. AG's after 1983) than in other jurisdictions. The AG is appointed by the Governor. The statute states that he is to be an advisor to the Governor. He serves at the pleasure of the Governor -- and therefore takes orders from the Governor in exactly the same manner as the AG does in Alaska. The USVI is not different or defective -- nor is the implementation here at all unusual. If you read all such statutes, including Alaska's it specifically states both that the AG is the Advisor (not hack) and serves at the pleasure. The argument that the Governor cannot be impeached is a whole other discussion having to do with Article IV.

I am NOT taking sides in this discussion -- simply stating that all of these points were are discussing here are valid points in both directions and should be gone over (just like we are doing) rather that always saying the VI system stinks and all of the VI politicians are doing things for bad reasons.

In fact, while 3 VIC 113 stated that the Governor could terminate Asst. AG's at will, the District court held in 1983 (in Finch-Sheen v. United Indus. Workers, 20 V.I. 125, 1983 U.S. Dist. LEXIS 10232 (D.C.V.I. 1983)) that even if 113 authorized the governor to hire and discharge all assistant attorneys . . .that contract underwent mutual revision upon the creation, execution, and adoption of the legislature in 1980 of a collective bargaining agreement governing employment relations between assistant attorneys general and the Department of Law; thus, the collective bargaining agreement governed assistant attorney general's conditions of employment.

So while the USVI is in EXACTLY....EXACTLY the same position as in other states that use this model -- the Assistant AG's actually have access to a higher level of protection here. Nor do I dispute that is some jurisdictions the AG's are elected -- but I did death penalty cases in one of those and was dealing with a horrible, political AG who was as much a hack and bad as can be, and I thought it was far worse system at the time. He wanted to kill people to get elected.

So I do not believe there is any evidence that we are subject to bad laws or a bad legal system any more than any Territory is -- and I will agree that Territories get a short deal on a number of things.....but no more here than elsewhere -- the AG is comparable in appointment, tenure, means of dismissal and direction by the Governor as some other places. For each of the four possible methods of seating an AG, I can give you examples of abuse and failings -- none better or worse I think. Moreover, I have practiced here for decades and don't believe they are any more subject to political pressure than in New Mexico or DC (where I also practice) or NYC where I lived and worked for a number of years.

So in closing.....I disagree that you are correct -- but also think that this discussion is valuable, educational and should be the TYPE of discussion we have rather than just assuming bad intent or a bad legal system with the attendant name calling and rudeness. And if I am wrong in whichever of the four I prefer (BTW...appointment by Supreme Court with staggered terms) and you are correct, then that decision should be made on the basis of whatever facts come out in such discussions....not lurid accusations and uninformed attacks.

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Topic starter Posted : August 14, 2015 7:21 pm
monogram
(@monogram)
Advanced Member

Once again, Carl is incorrect. The V.I. Supreme Court in the landmark Ernest Bason case clearly held that section 113 of title 3 (which grants the governor the authority to fire prosecutors) trumps any union agreement the government enters into as it pertains to reinstatement of a fired AAG. Here's a link:
http://www.visupremecourt.org/wfdata/frame2115-1191/File82.pdf

Though it was reversed on other grounds (mootness) by the Third Circuit, the thinking of our Justices could not be clearer. Carl's case from over 30 years ago is simply not good law.

Carl, can you list one state in which the governor has the statutory authority to fire any line prosecutor at any time? Or fire all the prosecutors in his jurisdiction who might investigate him? That is certainly not the case for Alaska. Even if it were, the fact that 49 states have rejected that approach speaks volumes.

I do like your Supreme Court-appointment theory. Seems pretty good.

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Posted : August 14, 2015 7:51 pm
CarlHartmann
(@CarlHartmann)
Advanced Member

Oh...Good Heavens....you mean that after a DISCUSSION where we actually talk about the FACTS...we agree ????? It is too much to hope for.

And as for your question about the USVI laws allowing firing "line" assistant AG's -- the Governor cannot and does not do that here unless I misunderstand the CBA.....I'm not sure where that comes from. Nor did he do that in the situation under discussion. The issue was (and is): How should the AG be seated. You initially said that nowhere was like here--we are really different, bad and corrupt. I noted that there were 4 other jurisdictions with different selection methods that should be understood....and responded that Alaska's was just like here...And though you agreed that both the federal government and another jurisdiction do exactly what we do....you then said the feds don't count and Alaskan law (presumably like the other US Territories) was known by all to be stupid or bad too -- and added we in the USVI could not impeach. Hmmmm. Likewise, I initially stated the IG should have more power if that was the form we took -- but you said I did not understand the iG's lack of current power.

So perhaps it is a draw?

But....that having been said. Clearly you feel that the law and system here are not optimal. Maybe yes, maybe no. But wasn't this exchange and the eventual possible solutions we seem to have some level of agreement on, WAY better than mindless newspaper stories, insulting letters to the editor, allegations of corrupt motives and the rest. Wasn't this a more useful and helpful discussion for those that read it -- than ranting and raving about how everything USVI is rotten and the only motives our politicians have are always corrupt? Admit it. There was more substance on this issue in one casual afternoon of banter than everything said and printed in anger and outrage for months.

Will we see a discussion of the four methods used elsewhere? Will we read a comparison of the good and bad in appointment versus elections -- of appointment by the Supreme Court versus Governor versus legislature? Will people get the real picture that there are positives and negatives to each and then select from among them? Will the newspapers and blogs discuss why Alaska may be wrong or Tennessee right? Will anyone write a letter to the editor saying "FOR THE LOVE OF ALL THAT'S HOLY...let make a decision based on the merits rather than who can scream the loudest or be the most mean-spirited"? Is it possible that both Ken Mapp and Soroya Diase had legitimate positions that they believed in rather than automatically calling one a self-aggrandizing whiner and the other corrupt self-dealing hack?

So here's my conclusion.....I like them both and want to believe in them -- and will give them both the benefit of the doubt and treat this like a serious issue of government rather than a self-interested catfight. And I think that despite the beginning of our discussion, you and I are not so far apart -- otherwise you would not have spent the time to actually set forth positions and attempt to discuss them rather than simply spew vitriol.

ps. I'm sending your comments about Alaska law being crazed to one of my good friends there -- stay out of the State ! And what does it say that so much of ours is based on theirs ?????

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Topic starter Posted : August 14, 2015 8:44 pm
ms411
(@ms411)
Expert

Yes, there will be a public discussion either this fall or early next year. Many people have already sided with Diase, and may not be open to learning the pros and cons of all the options. But, unless Organic Act is amended, governor has power to appoint. No other option.

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Posted : August 14, 2015 8:57 pm
CarlHartmann
(@CarlHartmann)
Advanced Member

and may not be open to learning the pros and cons of all the options
.

Sigh.....Without taking either side, I fear that you are correct about folks sometimes not understanding or caring about the various options and the facts--but always hold out hope that it will be otherwise.

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Topic starter Posted : August 14, 2015 9:09 pm
ms411
(@ms411)
Expert

Diase is pushing for an "independent" AG, when what she should be saying is elected or appointed by someone other than the governor. I think she is misleading the public with her choice of words, but she's proven herself to be very skilled in public relations.

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Posted : August 14, 2015 9:42 pm
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