Legislature(1997 - 1998)
04/30/1998 02:15 PM House FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JOINT RESOLUTION NO. 47
Proposing amendments to the Constitution of the State
of Alaska relating to the nomination, selection,
appointment, and public approval or rejection of
justices of the supreme court and of judges of courts
established by the legislature that have as an
exclusive purpose the exercise of appellate
jurisdiction over judicial acts and proceedings, and
requiring legislative confirmation of those justices
and judges and of the appointed members of the
judicial council.
REPRESENTATIVE JOHN COWDERY provided testimony in support
of HJR 47. He stated that the resolution would provide for
the legislative confirmation of judges appointed to
Alaska's Supreme Court and the Court of Appeals. It would
also provide for legislative confirmation of all members of
the Judicial Council.
HJR 47 was crafted to apply to appointments to both the
Supreme Court and the Court of Appeals. It does so by
adding constitutional language referencing courts or record
with appellate jurisdiction that is established by the
legislature, and would require all such appointments to be
presented for legislative confirmation.
Representative Cowdery continued, an additional feature of
the resolution is that it would require confirmation of all
members of the Judicial Council. The Council is created in
the Constitution, Article 4, Section 8. It provides that
three public members appointed by the governor shall be
confirmed by the legislature. However, it also provides
that three attorney members appointed by the Alaska Bar
Association do not have to be confirmed. HJR 47 would
require that all members of the Council would be confirmed
by the Legislature.
Representative Cowdery stated that the motivation for the
constitutional amendment is to include the public in the
process of appointing judges. The public currently has
less input into the judicial branch of government than in
either the executive or legislative branches. By providing
for the legislative confirmation of judges, the public will
be able to participate in confirmation hearings. Judicial
candidates will be able to present their philosophical
approach to jurisprudence. The public will have a voice in
that selection.
In response to Representative Kelly, Representative Cowdery
explained that the Judicial Council was comprised of nine
members. Three from the public appointed by the Governor,
three public members and three from the Alaska Bar
Association which are not confirmed. The Chief Justice is
the head of the group.
THOMAS STEWART, RETIRED JUDICIAL JUDGE, ALASKA SUPERIOR
COURT, JUNEAU, noted that he had been involved in the
Alaska Court System since its inception in 1959 and the
preparation of the Alaska Constitutional Convention. Judge
Steward spoke to three general categories:
? History of the merit system for selecting judges;
? Concerns of the operations of the proposed
measure; and
? Manner in which constitutional amendments are
generally handled by the Legislature.
Judge Stewart strongly opposed the proposed legislation and
urged Committee members to veto its passage.
Representative Martin suggested that the current system is
"broken" because an element of trust has been diminished
within our State. He noted that the current Judicial
Council has initiated liberal candidates and that the
public has no awareness of the judges who are chosen.
Judge Stewart pointed out that every judge stands for
election in his or her district, the first being in a
general election after three years in office. He
emphasized that there have been judges rejected and that
the public does have the opportunity to support or reject
candidates. Judge Stewart advised that the current process
does allow for correction of mistakes. Judges are
responsible for executing laws as passed by the Governor
and Legislature. Representative Martin voiced his
frustration with the Court's position on the "right to
privacy".
(Tape Change HFC 98- 137, Side 1).
Representative Grussendorf voiced concern with partisan
politics becoming involved in the judicial system with
passage of the resolution. Co-Chair Therriault asked if
Representative Grussendorf would support Section 2 of the
Legislation.
Representative Kelly observed that there is currently a
"disconnection" between the judiciary and the people. He
questioned who the judicial branch is accountable too.
Representative Kelly stressed that the proposed legislation
represents the public's frustration. He stated that the
judiciary branch is "out of touch" and has become an over
active judiciary.
Representative J. Davies disagreed with the
characterization presented by Representative Kelly. He
noted that more of his constituents have complained with
how "out of touch" the Legislature had become. He claimed
that Representative Kelly's statements were a vast over
reaction. He elaborated that the judiciary is doing its
job with laws as legislated.
Representative Kelly responded that logic disseminated by
the courts, often times is not sound. He believes that the
Judicial System currently is in the business of making law
and that many judges ignore legislative intent. He
suggested that the "right to privacy" now has evolved by
the judiciary to confer a benefit for people. He
understood the "right to privacy" as the right to be left
alone. Representative Kelly reiterated that the public is
"tired" with backward decisions made by the judiciary.
Representative Grussendorf stated that a protection of the
Court System is that judges are not a part of a popularity
contest as politicians are. It would be harmful to have
judges in such a situation. The role of legislators is to
be reflective of the public opinions but that is not the
role of judges.
Representative Mulder asked how often do judges stand for
retention. Judge Stewart replied that on the appellate
level, Supreme Court justices stand for retention at the
first election after ten years served, although, they stand
for reconsideration after the first general election after
three years in office. All judges selected under the merit
system stand for retention and that there is a performance
record for the voters to look at. For the Supreme Court
judge, it is ten years, for the trial court judge it is six
years, and for the district court judge, it is four years.
Judge Stewart advised that in the federal system, judges
are appointed for a lifetime.
KEN JACOBUS, (TESTIFIED VIA TELECONFERENCE), ANCHORAGE,
stated that politics are most definitely involved in the
present judicial system. These politics are being played
under the table. He advised that what currently exists is
different from the judicial system that Judge Stewart
participated in. Currently, there is a serious developing
crisis of confidence within the judiciary. There is a
split between the judiciary and the people.
He pointed out that at the Republican Convention in
Fairbanks, a resolution was amended to request people to
vote "no" on all judges at confirmation elections who make
decisions which are contrary to the Republican Party
platform and that resolution was passed.
Mr. Jacobus supported the Legislature placing
constitutional amendments before the people for matters,
which they believe are inappropriate decisions of the
judicial system. He urged support for the proposed
legislation allowing the public to decide, declaring that
this would provide more and better judges for the Alaska
system.
WILLIAM COTTON, EXECUTIVE DIRECTION, ALASKA JUDICIAL
COUNCIL, JUNEAU, spoke in opposition to the legislation.
He stated that the Council is a small, independent agency,
which was created by the Constitution in the Judicial
Branch of Government and is separate from the Court System.
The Council has constitutional and statutory duties in
different areas such as the screening of applicants and the
evaluation of justices on the ballot.
Mr. Cotton emphasized that Alaska provides a more thorough
evaluation of judges than any other state in the world.
Alaska provides more information to the voters than
anywhere else in the world. Before a judge appears on the
ballot, the Judicial Council will thoroughly survey anyone
who have served with that person on a personal or business
relationship, checking all the feedback and credit
information. Additionally, there is a statewide public
hearing, teleconferenced, for public input. The majority
of that information is available to the public.
Mr. Cotton emphasized that the current process does not pit
the attorney members of the Council against the non-
attorney members. In the screening process, the Council
provides a thorough background check, providing the public
with honest information regarding the candidates. Mr.
Cotton warned that the background of a person does not
necessarily determine what kind of judge they will become.
The current system is very good and balances the need for
judicial fairness and public accountability. Mr. Cotton
stressed that Alaska's system is recognized and respected
nationally. Mr. Cotton urged Committee members to
reconsider passage of the resolution.
Co-Chair Therriault inquired the percentage of appointments
which come from within and outside the judiciary. Mr.
Cotton replied that he did not have any statistics
available, although, guessed that between 10 - 20% court
judges move to the Superior Court.
(Tape Change HFC 98- 137, Side 2).
STEPHANIE COLE, ADMINISTRATIVE DIRECTOR, ALASKA COURT
SYSTEM, ANCHORAGE, addressed the concerns within the Court
System with the proposed legislation.
1. Erosion of judicial independence and politicization of
the process. She stated that the fundamental
principle in our system of government is that judges
are impartial. Ms. Cole pointed out that each person
who brings a case before an Alaska Court should feel
that the judge hearing the case is unbiased, fair and
that the judge will apply the law to the particular
facts of that case.
Ms. Cole warned that with a legislative confirmation
process, there is a real danger that judges will be
perceived as favoring the party or groups which championed
them through the process, a danger in which judges will be
perceived as having a prejudged issue based upon the
questioning occurring during the confirmation process which
would especially be a problem in highly controversial
cases. Ms. Cole pointed out that in the federal system,
which is not a merit-based system, there have been
confirmation hearings which have appeared to become very
political. The Court System believes that our current
system is preferable.
2. HJR 47 creates the potential for significant
additional delay in judicial appointments, which may
have an undesired effect on the applicant pool and
would create serious workload issues for the Court.
Ms. Cole pointed out that at this time it takes on the
average six months for all steps in judicial selection to
be completed. Judicial absences equate to a loss of
judicial resources, which then equates to case delay.
Court operations are seriously impacted by gaps especially
on the appellate level.
3. HJR 47 would downgrade the merit selection process
results. She referenced previous testimony from Mr.
Cotton explaining that the trend is to move towards a
merit selection for judges, not away from it. In the
Alaska system, there is a very rigorous scrutiny of
applicants in which only the most qualified emerge
from the process and are sent to the Governor for
selection. The proposed system could result in
working down the list to lesser-qualified candidates.
Ms. Cole reiterated that the Alaska Court System strongly
opposes the proposed legislation.
Co-Chair Therriault asked how many people on the average
submit their name for consideration in the process. Ms.
Cole replied there is a large variation depending on the
length of time since the last selection, the level of court
and the location.
VICTOR FISHER, SELF, FORMER MEMBER OF THE ALASKA
CONSTITUTIONAL CONVENTION, ANCHORAGE, spoke in opposition
to the legislation. He stated that the resolution would
not bring public involvement into the process, but would
instead politicize the judicial appointment process.
The Constitutional Convention worked vigorously at
establishing a fair balance between the branches of State
government. Mr. Fisher pointed out that HJR 47 is poorly
drafted and that the language is out of context with the
rest of the Constitution. He recommended that the proposal
should be laid aside.
Co-Chair Therriault asked if Mr. Fisher was speaking to
only the confirmation of the judges. Mr. Fisher replied
that he was speaking to the confirmation aspects,
indicating that the Judicial Council portion of the
legislation was the only part properly drafted. Mr. Fisher
concluded that our system is not broken.
LISA KIRSCH, APPOINTEE BY THE GOVERNORS BOARD, ALASKA BAR
ASSOCIATION, JUNEAU, stated that the Alaska Bar Association
is a mandatory association with 2200 members that are
active attorneys. A 12-member board, three of which are
lay members, governs the bar. The Alaska Bar Association
has been vested with the constitutional responsibility to
appoint three of the seven members of the Council. The
Council is then responsible for evaluating candidates for
judicial appointment. The Alaska Bar Association is
concerned with a number of different aspects contained in
HJR 47.
1. The addition of the confirmation process in the
Legislature will politicize the process. The primary
issue is that the partisan political process is
inappropriate in making the determinations required by
a court of law. The seats are not contested along the
lines of partisan politics. The concern is that the
legislation will turn the contest focus from
performance attributes of the candidates to the
ability of the candidate to lobby for support.
2. The Alaska Bar Association's concern is also for the
proposed process for appellate judicial appointments.
There is concern that this will result in a smaller
pool of applicants and applicants drawn only from
those willing or able to weather out a long and
continuos process.
Ms. Kirsch advised that our current non-partisan system is
what makes this judicial system such a good one. The
polling process is a complicated system and is much more
thorough than the public checking a yes or no box in
support or opposition of candidates.
In summation, Ms. Kirsch advised that the Alaska Bar
Association can not comprehend any difficulties that will
be resolved with passage of the legislation. She suggested
that if it isn't broken, don't fix it. Ms. Kirsch pointed
out that the judiciary's current non-partisan selection
process is responsible for Alaska's high quality judiciary
which should be retained.
Co-Chair Therriault asked if the Council had experienced
any difficulties with appointments which have been
confirmed. Ms. Kirsch suggested that often the attorneys
who seek out the positions are the ones who have had major
cases, are already in the public eye, and have been subject
to scrutiny. For specifics, she referred to Mr. Cotton.
Co-Chair Therriault asked Representative Cowdery how the
cases in which the Legislature choose not to confirm a name
submitted to the Governor would be addressed.
Representative Cowdery replied that if the proposed
legislation was in place, the concern would be alleviated.
MARCO PIGNALBERI, STAFF, REPRESENTATIVE JOHN COWDERY,
stated that during Governor Hickel's Administration, he
choose not to forward the names to the Legislature, and
consequently, the Council provided additional names. Mr.
Pignalberi stated that it is the governor's job to make the
names available to the Legislature. He stressed that this
legislation would require everyone to do their job.
Co-Chair Therriault questioned the timing concern with
filling vacated positions. Mr. Pignalberi advised that the
court administrator has the ability to require judges to
receive a year notice before retirement. He pointed out
that the legislation only speaks to eight judicial
positions. Representative J. Davies advised that those are
the most preeminent positions in the entire Court System.
If those positions became politicized, it would largely
impact the entire system. Representative Cowdery replied
that the current system is already politicized.
Representative Grussendorf warned of the dangers that will
result from the proposed legislation.
Representative Kohring concurred with previous remarks made
by Representative Kelly and voiced support for the proposed
legislation. He pointed out his frustration that the
judicial process has been ignoring the laws which the
Legislature has been making.
Representative J. Davies asked what benefit Representative
Cowdery believed would occur by placing judges through
these tests. Representative Cowdery replied that it is the
right of the public to know the belief system and politics
of the court judges. Representative J. Davies asked if it
was important that judges apply their own views on
decisions that they make in the Court of Law.
Representative Cowdery replied that it is important for the
voters to know who these people are.
Representative J. Davies emphasized that what is really
important is that a judge be able to set aside their own
view and make decisions fairly within the limits of the
law. Representative Cowdery stated that elected officials
are elected for their viewpoints. Representative J. Davies
reiterated that the standard is that the judge's view
should not be important. Representative Kelly noted that
it has become important because the judiciary has changed.
They are no longer interpreters of the law, but instead,
they are in many cases, makers of the law.
(Tape Change HFC 98- 138, Side 1).
Representative Grussendorf MOVED to adopt Amendment #1.
[Copy on File]. He explained that the amendment would
specify that only the members of the Judicial Council come
before legislative scrutiny. Representative Kohring
OBJECTED.
Following discussion of the impact of the amendment, a roll
call vote was taken on the motion.
IN FAVOR: Grussendorf, Kelly, Martin, Moses, J.
Davies, Therriualt, Hanley
OPPOSED: Kohring, Mulder, G. Davis
Representative Foster was not present for the vote.
The MOTION PASSED (7-3).
Representative Mulder MOVED to report CS HJR 47 (FIN) out
of Committee with individual recommendations and with the
accompanying fiscal note. There being NO OBJECTION, it was
so ordered.
CS HJR 47 (FIN) was reported out of Committee with "no
recommendation" and with a fiscal note by the Office of the
Lt. Governor dated 3/11/98.
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