Legislature(2013 - 2014)HOUSE FINANCE 519
03/20/2014 08:30 AM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HJR33 | |
| HJR18 | |
| HB220 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HJR 18 | TELECONFERENCED | |
| + | HJR 33 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 220 | TELECONFERENCED | |
HOUSE JOINT RESOLUTION NO. 33
"Proposing amendments to the Constitution of the State
of Alaska to increase the number of members on the
judicial council and relating to the initial terms of
new members appointed to the judicial council."
8:36:54 AM
REPRESENTATIVE WES KELLER, SPONSOR, referenced CSHJR 33
(JUD), legislation that proposed to amend Alaska's
constitution to increase the number of non-attorney members
of the judicial council from three to six and the total
number of council members from seven to ten. The intent of
the resolution was two-fold. First, he argued that the
legislation would provide for better representation from
around the state with additional seats potentially filled
by individuals from rural areas presently underrepresented.
Secondly, chances of the chief justice having to step in to
cast a deciding vote and being exposed to subsequent
criticism would be reduced by changing the number of
regular voting members from an even to an odd number.
He relayed that in a hearing past Chief Justice Walter
Carpeneti, testified that ties were rare. He also noted
that ties had become more common recently. He thanked the
committee for considering bringing the issue before the
people of the State of Alaska for a vote.
Co-Chair Stoltze OPENED public testimony.
8:41:44 AM
SUSANNE DIPIETRO, EXECUTIVE DIRECTOR, ALASKA JUDICIAL
COUNCIL, stated that the council had not taken a position
on the legislation. She identified three areas of focus in
her testimony. First, she would speak about Alaska's merit
selection and retention system and how it worked.
Secondly, she would provide information about how other
states structured their judicial nominating commissions.
Finally, she would discuss the founders' intent from the
constitutional convention when they adopted Alaska's
selection and retention system.
Ms. Dipietro explained that the judicial council was
responsible for screening judges for nomination prior to
the governor's review and appointment. She also informed
the committee that the council was in charge of evaluating
sitting judges for retention and that every sitting judge
must be confirmed by voters in an election process. She
noted the council was also accountable for conducting
studies to improve the administration of justice. Some of
the studies she cited included criminal sentencing,
criminal recidivism, and mediation.
8:44:39 AM
Ms. DiPietro stressed Alaska's extensive and transparent
judicial selection process. She pointed out that Alaska's
system was frequently used as a model by other states and
was called upon for technical assistance. Alaska provided
information to the public more than any other judicial
council in the country, issuing press releases for every
vacancy, accepting public comments throughout the selection
process, and conducting public hearings in judicial vacancy
locations. She referenced an upcoming public hearing in
Barrow for a superior court judge. In contrast, she
remarked that other judicial selection commissions do not
reveal the names of applicants.
Ms. DiPietro explained that there are three non-attorney
council members appointed by the governor and three
attorneys appointed by the bar association. The council
members agreed unanimously 62 percent of the time when
voting on candidate qualifications. Votes were unanimous
with the exception of one member 19 percent of the time.
8:47:49 AM
Ms. DiPietro reported that of the 38 states that had
judicial nominating commissions 18 had an equal number of
attorney and non-attorney members. Five of the states had a
larger number of non-attorney members than attorney
members. However, in four of the five it was required that
a majority of the non-attorney members be of different
political parties. The system in Alaska required
appointment without regard to political affiliation.
Lastly, she said Alaska founders embraced the theory of the
Missouri Plan which specified that the predominance of the
vote of the judicial council would go to professional
individuals who knew the qualifications of their fellow
careerists.
8:50:13 AM
DAVID LANDRY, SELF, ANCHORAGE (via teleconference),
testified as a business owner in opposition to HJR 33. He
opined that the legislation undervalued the expert
knowledge attorneys bring to the table during the process
of selecting judges and mischaracterized the nature of the
bar association. He confirmed that as a contractor he
valued input from his colleagues because of their knowledge
and familiarity of a shared vocation. He believed that the
current make-up and balance of the judicial council made
use of professional knowledge in a similar way. He went on
to contend that it was the governor's constitutional
responsibility to ensure the appointment of a regionally
diverse group of council members.
Mr. Landry pointed out the need for cases to be evaluated
by fair and capable judges - judges appointed by the bar
association. He claimed that the legislation depicted the
bar association as ill-intentioned but believed the current
judicial council make-up was only a problem for those
interested in having it politicized. He wanted the
selection process to result in confident, vetted judges
that were held in high esteem by their peers.
8:54:21 AM
DONALD MCCLINTOCK, SELF, ANCHORAGE (via teleconference),
spoke in opposition to the legislation. He began his
testimony informing the committee he was a current member
of the board of governors for the Alaska Bar Association,
one of its past presidents, and an applicant for the vacant
2012 seat for the Alaska Supreme Court. He indicated that
he was speaking on his own behalf outlining two points; the
impact of the bill shifting the balance of power between
the judicial branch and the executive branch and deterrence
of qualified applicants. He reported that over the last 33
years, he witnessed a very competent and hard-working
judiciary, fostered by an admirable selection process. He
disclosed that in his experience as a prior applicant
appearing before the judicial council, the selection
process was driven based on aptitude rather than political
persuasion. He commented that over the years past governors
have done a fine job selecting judges and following the
process currently in place. He expressed his concern with
giving the governor the commanding majority vote of the
judicial council and mentioned that the state would
potentially loose qualified applicants if the council was
stacked leaning towards one party or another. He argued
that the state needs the broadest pool of people to choose
from and believed an unintended consequence would result
from politicizing the selection process. In closing, the
judicial council was charged with picking the best
qualified people for the job. He concluded that the current
system had been working admirably since statehood. He
reiterated his opposition to HJR 33.
8:59:51 AM
NICOLE BORROMEO, ALASKA FEDERATION OF NATIVES (AFN),
ANCHORAGE (via teleconference), testified in strong
opposition to the legislation and stated that AFN believed
both the Alaska Constitution and the Alaska Judicial
Council worked well. She mentioned that the judiciary
functioned free of scandals, corruption and other ills that
plagued other non-merit based systems. She contended that
the reasons outlined for introducing HJR 33, increasing the
council's rural representation and guarding against
attorney dominance, were not truly addressed in the
proposed legislation. Ms. Borromeo asserted that there was
no portion of the bill that specifically assured rural
representation; it only added three non-attorney members
selected by the governor. Also, there was no indication
that the judicial council, in its current form, was
significantly dominated by attorney members over non-
attorney members.
Co-Chair Stoltze stated that the issue would be revisited.
9:02:25 AM
MATT PETERSON, SELF, ANCHORAGE (via teleconference), spoke
against the bill. He testified that in his personal
experience as a 35-year trial attorney, he was very
satisfied with the judges he had dealt with. He found them
to be hard-working, ethical, and professional. He expressed
concerns that the bill would potentially insert previously
non-existent political undertones and that there was not a
need to change the constitutional council.
Mr. Peterson informed the committee that he conducted oral
history interviews with two surviving members of the
constitutional convention, past Lieutenant Governor Jack
Coghill and Vic Fisher. In the interviews he focused on the
judicial portion of the constitution including the
selection process of judges and court administration. He
reported that substantial oral history was created from
interviews at Alaska's 50th anniversary of the
constitution. He referenced the University of Alaska's
collection of historical interviews, including some with
Judge Tom Stewart, who provided extensive information to
the university and bar association about judicial and court
issues. He relayed intent to provide the committee with a
supplement to his testimony in the form of a letter.
Mr. Peterson went on to discuss his interviews with Mr.
Coghill and Mr. Fisher. He reported that the aim of the
1955 constitutional convention was to arrive at a framework
that would pass the test of time and to create a valid and
sound structure for governing the state. He furthered that
in all of the research he had done regarding the crafting
of a new judicial system, merit was the primary gage in the
choosing of judges and any political influence would be
left out of the selection process. He relayed that the
balance of power was a concern at the inception of Alaska's
constitution and still was today. He closed by reiterating
his opposition to HJR 33.
9:11:40 AM
DARREL GARDNER, SELF, ANCHORAGE (via teleconference),
testified in opposition to the bill. He introduced himself
as a life-long Alaskan, an attorney for over 30 years, the
president of the Alaska chapter of the Federal Bar
Association, the president of the Alaska Association of
Criminal Defense Lawyers, a night circuit lawyer
representative to the judicial conference, and a current
candidate for a seat on the board of governors of the
Alaska Bar Association for the third judicial district. He
testified on his own behalf. He remarked that he did not
know a single practicing attorney who was in favor of HJR
33 and that the current structure of the judicial council
worked. He claimed there was no demonstrated need to
change the constitution to add additional members or the
way in which the council functioned. He speculated that
the proposed legislation to expand the size of the council
had the potential to politicize and hamper the council's
selection process. He suggested that the proposed
legislation was short-sighted and that, overall, the bar
was satisfied with the judicial selection process.
9:13:57 AM
NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM, opposed
HJR 33 on behalf of the court system. She stated that the
court system normally remained neutral except when bills
and resolutions directly impacted its operation or when the
administration of justice was threatened. She was
specifically directed by the Alaska Supreme Court to oppose
the resolution. She relayed that the court's mission was to
provide the citizens of Alaska an impartial forum for the
resolution of disputes. She emphasized that it relied on
the judicial council to screen candidates for judgeships
and, thereafter, to make recommendations about the
retention of sitting judges for the benefit of Alaskan
voters. She opined that HJR 33 would disrupt a fine-working
configuration of three attorneys and three public members
sitting on the council. She explained that the judicial
council considered candidates based on qualifications and
merit by both its attorney members and public members;
attorney members weighing in from a colleague's perspective
and public members evaluating from a citizen's viewpoint.
She expressed the court's concern that without the current
balance of power in place members would change their
evaluation criteria from aptitude to political leanings.
The court's other concern was that with a clear majority of
members sharing a particular philosophy, attorney views
might be excluded from consideration, or the quality of
applicants might be compromised. She also suggested that a
judge might potentially rule on a case in alignment with
the governor to avoid being unseated in the future.
Ultimately, Alaska's citizens would not feel like they had
a fair and impartial decision maker in front of them. She
asserted that the court system currently had 73 sitting
judges from every background imaginable with a wide range
of experience. She was attempting to dispel any notion of
council member biases based on political leanings. She
concluded her testimony reemphasizing the court system's
opposition to the legislation.
9:20:46 AM
MIKE COONS, SELF, PALMER (via teleconference), testified in
support of the legislation. He stated that the testimony in
the committee hearing was stacked with opponents to HJR 33.
He contended that the Ninth Circuit District Court was
stacked with the most liberal judges in the entire world.
He suggested that the Supreme Court ruled against freedom
of choice in education and for the Blaine Amendment,
continually having judges legislating from the bench. He
commented that he could think of several judges over the
years that were extremely liberal, letting people out on
their own recognizance after they had raped elderly people.
He pointed out the need for a judge that made a judgment
based on the constitution not on his or her political
leanings. He mentioned that people misconstrued the Second
Amendment. He wanted as many solid citizens to sit on the
judicial council as possible; people that wanted to do the
job, to take care of criminals, and to avoid legislating
from the bench. He restated his full support of HJR 33.
9:24:19 AM
FRITZ PETTYJOHN, SELF, CALIFORNIA (via teleconference),
testified in support of the legislation. He noted his
qualifications as a prior Alaska State House Representative
and Senator and a 40-year member of the Alaska Bar
Association. He explained that legislators were not allowed
to legislate in areas of laws which infringed upon Second
Amendment rights. The purpose of the court was to protect
citizens from the majority trampling on minority rights as
reflected in the constitution. He asked what extent the
court had in deciding for itself what was or was not a
constitutional issue, what could or could not be
legislated, or what had to be decided by a court, not by
the representatives of the people. He claimed to have seen
a consistent tilt in the Alaska Court System, specifically
at the Alaska Supreme Court level of a very expansive view
of its own power and a limited one of the legislature. He
believed that the system imposed on the citizens of Alaska
has taken the judicial branch of government and expanded
its power at the expense of the legislature and the people.
He advocated for legislators to have a say in which
qualified names went before the governor for judgeship
consideration. He opined that in the past the judicial
council had clearly manipulated the outcome of a
nomination. He believed that HJR 33 corrected a fundamental
flaw in Alaska's constitution that puts lawyers in charge
of a branch of government rather than in the hands of the
people. He argued that the legislation would help fix a
broken system.
9:27:15 AM
MICHAEL PAULEY, ALASKA FAMILY COUNCIL, SEATTLE WASHINGTON
(via teleconference), supported more public involvement in
the process in which the State of Alaska selected,
evaluated, and retained its judges. He affirmed the goal of
HJR 33. He noted the wide variety of members serving on
various judicial nominating commissions around the country.
From the perspective of the Alaska Family Council, the
proposal of adding three additional public members to the
judicial council was not out of the ordinary in comparison
to other states. He emphasized the population of Alaska had
at least tripled from the time of statehood and the court
system had grown along with it. He suggested that creating
a larger judicial council would be appropriate. He
concluded that there should be a proper balance between
members representing the bar association and members
representing the general public. He did not believe that
the council would be out of balance with three attorneys
and three public members. He reported that the attorneys on
the council were selected by the board of governors of the
bar association, an entity with 4,212 members, representing
one half of 1 percent of the population of the state.
However, they get to choose half the regular voting members
of the council. The three public members were there to
represent the non-attorneys, the other 731,000 Alaskans
served by the court system. He claimed that in the judicial
council's current form an enormous amount of power rested
in the hands of attorneys practicing law in front of judges
rather than in the hands of the general public. He noted
that the chief justice was a dues-paying member of the bar
association. In reality, the bar members had a majority of
four of the seven seats of the council. He also emphasized
that the bar members were not appointed by the governor or
confirmed by the legislature. In contrast, the non-attorney
public members were required to appear before the House and
Senate Judiciary Committees for an interview process.
Mr. Pauley opined that the way in which Alaska's Judicial
Council was structured was different from other commissions
and government. For example, physicians on the state
medical board were appointed by the governor, not by the
Alaska State Medical Association, and stood for legislative
confirmation. He reported that the same process applied to
the Alaska Board of Nursing and the Alaska Board of
Pharmacy. He referenced five examples in the past two years
where all three public members of the council voted yes to
nominate a particular applicant for a judicial vacancy, but
all of the participating attorney members voted no. In
each case, the chief justice sided with the attorneys,
defeating the nominations and shortening the list of names
submitted to the governor. He believed the potential for
the chief justice to influence decisions made by the
council was undeniable. HJR 33 proposed to increase the
number of voting members to nine, making tie votes more
rare.
9:32:58 AM
Co-Chair Stoltze CLOSED public testimony.
Representative Keller concluded his testimony by stating
that in the process of hearing HJR 33 in the House he was
baffled that the issue was such a big deal. He cited the
addition of three non-attorney members to the judicial
council if the legislation passed. He asserted that the
reaction to the bill was amazing and that he had never
heard of a problem with a non-attorney member on the
judicial council. He mentioned having difficulty
understanding the rationale of anyone opposing the
legislation. He read from a book titled, "Alaska's
Constitutional Convention" (published by University of
Alaska) which he suggested provided proper context:" He
elaborated that the review of the convention consisted of
five lawyers and two laymen. He specified that the
committee agreed to follow the principles suggested by the
American Bar Association and to adapt the Missouri Plan. He
recounted another section of the book where a consultant
talked about some of the issues that came up. The book
stated that these sections, referring to the judicial
branch:
go a long way toward withdrawing the judicial branch
from the control of the people of this state and
placing it under that of the organized bar. No state
constitution has ever gone this far in placing one of
the three coordinate branches of the government beyond
the reach of democratic influence. We feel that it is
in its desire to preserve the integrity of the courts
the convention has gone further than necessary or safe
in putting them in the hands of a private professional
group, however public spirited the members may seem to
be.
Representative Keller went on to explain that the
consultants suggested a number of revisions that would
democratize the proposed system by providing for the
legislative confirmation of both the attorney and lay
members of the judicial council. He reported that the
suggestions were not accepted by the meeting committee
chairman and never reached the convention floor. He
reemphasized the importance of allowing the public to vote
on the legislation.
Co-Chair Stoltze made a historical reference before setting
the bill aside.
HJR 33 was HEARD and HELD in committee for further
consideration.
9:38:29 AM
AT EASE
9:43:08 AM
RECONVENED