Legislature(1995 - 1996)
03/21/1996 09:20 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR HOUSE JOINT RESOLUTION NO. 5(FIN) am
Proposing amendments to the Constitution of the
State of Alaska relating to terms of legislators.
Co-chairman Halford directed that CSHJR 5 (Fin) am be
brought on for discussion. He then referenced SCS CSHJR 5
(Jud) and a proposed amendment by Senate Judiciary to
correct an overreach relating to magistrates.
CHRIS CHRISTENSEN, General Counsel, Alaska Court System,
came before committee. He explained that the supreme court
has taken no position on sections applying to non-judicial
officers. However, it opposes sections that would create
fifteen-year term limits for judges and magistrates.
Alaska's system of judicial appointment and retention is
considered a model and has been adopted by other states.
The system will not be improved by the proposed bill but
will, instead, be severely compromised. Judicial office is
fundamentally different than political office. Alaska's
constitution recognizes that difference. Justices and
judges are appointed by the Governor rather than elected by
voters. After assuming office, they do not face contested
election. They stand for retention on a vote by the public.
Magistrates are not constitutional officers. They are
merely employees of the court system who serve at the
pleasure of the presiding judge.
Mr. Christensen noted that supporters of the original
version of HJR 5 made several arguments in support of their
views. He then said that none of the arguments "have any
applicability, whatsoever, to the judiciary." While it is
argued that public opinion polls show support for term
limits, most polling data relates to Congress. Mr.
Christensen said he had seen none that relates to term
limits for judicial officers. No such initiatives or
statutes have been passed elsewhere in the nation in the
last few years. Mr. Christensen further advised,
Second, it's argued that term limits will bring in
people with new ideas. Mr. Chairman, I think I
don't have to tell you, judges aren't supposed to
have ideas, new or otherwise. Judges are supposed
to take your laws and apply them to individuals.
The third argument is that term limits level the playing
field for challengers. There are no challengers in judicial
retention elections. The voting public has an opportunity
to approve or disapprove the action of each judge. Judges
have been rejected by the voters in the past. The retention
election is the appropriate form of judicial term limit.
Mr. Christensen stressed that the practical effect of
imposing a fifteen-year term limit on judges would be to
deter "anyone under the age of 45 from applying to be a
judge." Those under that age would be forced to leave the
bench before retirement age and begin a second career at
that time. The term limitation would also have a negative
impact on the retirement system. Most judges presently
serve longer than fifteen years before retiring. The
actuarial basis of the judicial retirement system assumes
that judges will continue to make contributions to the
system after they have fully vested. If all judges are
required to retire at fifteen years, there will be
substantially more judges drawing retirement pay at any one
time, and the state will be forced to increase its
contributions to the retirement system.
As evidence of further negative fiscal impact, Mr.
Christensen noted that court system fiscal notes for new
criminal law do not reflect the cost of a sitting judge but
use of a recently retired judge on a pro-tem appointment.
Because such judges draw retirement pay, the court system
pays only the difference between their retirement and what a
sitting judge receives. Legislation is thus implemented
based on a cost of approximately fifty cents on the dollar.
Under the proposed bill, judges would be prohibited from
serving for three years after retirement. The court system
will thus have difficulty getting pro-tem judges. That will
substantially slow the process, and the court system will
probably have to pay more to obtain judicial services.
In his closing remarks, Mr. Christensen stressed the supreme
court's belief that the state judicial system will work best
if members "come from the widest possible demographic pool,
and if the voters are allowed to decide which judges are
doing a good job and deserve to be retained."
Co-chairman Frank inquired concerning changes made in Senate
Judiciary. Mr. Christensen explained that the Judiciary
version adds municipal officers to term limits. The House
resolution bill applies only to the legislature.
REPRESENTATIVE THERRIAULT, sponsor of the resolution, next
came before committee. He explained that the House version
required an individual to "sit out for two, full,
consecutive terms." Changes in Senate Judiciary would
require a former legislator to "sit out for four years
unless you were appointed to fill somebody's seat," if they
left office.
Senator Randy Phillips inquired concerning the rationale
behind the resolution. Representative Therriault spoke to
the "power of incumbency" that is not available to
challengers. He voiced his belief that, "after a certain
amount of time, you should break that incumbency."
Senator Phillips remarked that cumulative averages since
statehood indicate that "every two years 35 percent of the
Senate is gone, and every two years 45 percent" of the House
is gone. He suggested that being an incumbent puts one in a
negative rather than positive position. Representative
Therriault acknowledged a healthy turnover in the state
legislature. He explained that the bill is aimed at those
in office for 25 to 30 years. Senator Phillips raised
concern that the resolution would deny voters the right to
vote for whomever they wish. He stressed that voters can
rid themselves of legislators they do not want. They have
utilized that opportunity numerous times. The facts do not
support the theory behind the resolution. Representative
Therriault pointed to prohibitions denying both the
President and Alaska's Governor third terms. Senator
Phillips noted that much power is concentrated in those
positions while it is shared among 60 members of the
legislature.
Co-chairman Halford told members that the National Council
on State Legislatures views Alaska's legislature as one of
the weakest in the country, in terms of power held by the
Governor. He added that while he generally supports term
limits, there is need for institutional legislative memory
in the balance of power between the legislative and
executive branches. He further observed that things done in
response to public interest have weakened the legislature in
several areas. Nothing since statehood has weakened the
Governor. Questions are thus raised concerning the balance
of power. Representative Therriault acknowledged need for
an adequate learning curve for legislative proficiency.
END: SFC-96, #45, Side 2
BEGIN: SFC-96, #46, Side 1
Senator Donley concurred in comments by Co-chairman Halford,
advising of the following limitations on the legislature:
1. 120-day session
2. stringent ethics law applied to the legislature
while the executive branch operates under
much less burdensome law
3. requirement for a three-quarter vote on override
of the Governor's veto on appropriation items.
Alaska is the only state where the Governor has
reapportionment power. Further, few states provide the
line-item veto power enjoyed by Alaska's Governor. The need
for centralized power has lessened rather than increased
since statehood, yet the power of centralized government has
increased over that period of time. Philosophically, "it's
gone the opposite of what it should have gone." Senator
Donley said he could support the resolution if provisions
are packaged with other reforms such as legislative power
over state-created public corporations.
Senator Rieger concurred in need to maintain a balance of
power. He expressed additional concern over placing
multiple proposals before the voters that "make it look more
and more like a constitutional convention." He questioned
the kind of precedent that would set.
Co-chairman Halford noted that the upcoming election would
provide a test for voters confronted with complex, multi-
page initiatives dealing with topics that are generally
supported. He attested to the time required to read full
ballot provisions and suggested that voters may reject
"things that they would otherwise like, because they're too
complex and presented with too many facets." The Co-
chairman specifically cited issues relating to both fish and
game and campaign reform.
Representative Therriault voiced his belief that the Senate
Judiciary version confuses the issue and asked that
committee deliberations revert to the House resolution. Co-
chairman Halford concurred in regard to Judiciary inclusion
of magistrates. He said that magistrates would be removed
from the resolution since they were inadvertently
incorporated.
Comments followed by Co-chairmen Frank and Halford regarding
the regulatory powers of the executive branch.
In response to a question from Senator Zharoff,
Representative Therriault advised that the House resolution
speaks specifically to House and Senate legislators. It
does not include municipal officials.
Further brief discussion followed regarding voter rejection
of judges. Senator Rieger voiced concern that mandating a
greater degree of turnover in the judiciary further tilts
the balance of power toward the executive branch since the
Governor has the power to appoint judges. Co-chairman Frank
concurred and indicated a preference for the House
resolution. He remarked that judicial retention is a
separate issue. Senator Donley suggested that requirement
of a super majority (60 to 65 percent) for retention of a
judge might be a better approach. Additional discussion of
an elected judiciary followed. Co-chairman Halford
concurred that the balance of power question was made worse
by inclusion of the judiciary within the resolution.
Senator Zharoff suggested that term limits on the
legislature should do away with the prohibition of having to
wait a year prior to pursuing certain employment
opportunities.
Further discussion of the balance of power between the
legislature and executive branch followed. As a counter
argument to need for institutional memory within the
legislature, Co-chairman Frank cited the institutional
tendency toward the status quo that occurs the longer an
individual serves. He noted that freshmen legislators "are
willing to come in and change things more aggressively than
are those that have been here for twelve years plus . . . ."
The viewpoint of those who know they will serve limited
terms may be valuable to the process.
Co-chairman Halford voiced his belief that the greatest
abuse of legislative incumbency in other states is
leadership incumbency. Alaska has a tradition of not
repeating presiding officers. Abuses occur when individuals
retain the position of senate president or speaker of the
house for twenty years.
Co-chairman Halford directed that the bill be held in
committee and noted consensus to "go back to the House bill
as a starting point and work from there."
ADJOURNMENT
The meeting was adjourned at approximately 11:15 a.m.
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