Legislature(2013 - 2014)CAPITOL 120

04/10/2013 01:00 PM House JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 200 ACTIVITIES OF THE JUDICIAL COUNCIL TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 54 PLACEMENT OF A CHILD IN NEED OF AID TELECONFERENCED
Moved CSSSHB 54(HSS) Out of Committee
+= HB 34 FEDERAL LAWS, REGULATIONS & EXEC. ORDERS TELECONFERENCED
Heard & Held
          HB 200 - ACTIVITIES OF THE JUDICIAL COUNCIL                                                                       
                                                                                                                                
1:09:03 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER announced  that the next order of  business would be                                                               
HOUSE  BILL NO.  200, "An  Act  relating to  the Alaska  Judicial                                                               
Council and to judicial retention elections."                                                                                   
                                                                                                                                
CHAIR KELLER,  as the sponsor of  HB 200, referred to  the Alaska                                                               
State  Constitution, and  noted that  Article IV,  Section 8,  in                                                               
part  stipulates  that  the Alaska  Judicial  Council  shall  act                                                               
according  to  rules  which  it  adopts;  and  that  Article  IV,                                                               
Section 9, in  part stipulates that  the Alaska  Judicial Council                                                               
shall perform  other duties assigned  by law.  He  indicated that                                                               
HB 200  is being offered  because there was confusion  during the                                                               
last election [regarding those rules and duties].                                                                               
                                                                                                                                
1:10:46 PM                                                                                                                    
                                                                                                                                
JIM  POUND,  Staff,  Representative   Wes  Keller,  Alaska  State                                                               
Legislature,  on behalf  of the  sponsor, Representative  Keller,                                                               
relayed that  HB 200 would  preclude the Alaska  Judicial Council                                                               
(AJC) from  providing the voters  with a  recommendation relating                                                               
to a  judge or justice  seeking retention, a practice  which some                                                               
feel  to be  unfair.   He assured  the committee  that under  the                                                               
bill,  the AJC  would  still  be able  to  review [things  about]                                                               
Alaska's judges and justices, and  submit certain information for                                                               
inclusion in the election pamphlet.                                                                                             
                                                                                                                                
1:12:48 PM                                                                                                                    
                                                                                                                                
NANCY  MEADE, General  Counsel, Administrative  Staff, Office  of                                                               
the Administrative Director, Alaska  Court System (ACS), said the                                                               
ACS  opposes  HB 200  and  has  serious  concerns  with it.    In                                                               
response  to  questions,  she explained  that  although  the  ACS                                                               
usually declines to take a  position on proposed legislation, the                                                               
ACS  feels it's  necessary to  take a  position in  this instance                                                               
because  HB  200  would  have  a direct  impact  on  the  court's                                                               
practices,  on  the  administration  of the  ACS,  on  the  ACS's                                                               
employees  - Alaska's  judges and  justices -  and on  the Alaska                                                               
Judicial Council  (AJC), which is  both supported by the  ACS and                                                               
depended upon  by the ACS to  help it maintain a  judicial system                                                               
that  has   high-performing,  professional,   competent,  neutral                                                               
judges.  In  response to another question, about  whether a judge                                                               
or justice's  personnel file  is open  to the  public prior  to a                                                               
judicial retention  election, Ms.  Meade explained that  the AJC,                                                               
in fulfilling  its constitutional and statutory  duties, provides                                                               
the public  with a lot  of information about judges  and justices                                                               
who  are up  for  retention; however,  some  information the  AJC                                                               
obtains  about  judges  and  justices either  is,  or  might  be,                                                               
considered confidential,  and some  claims by  unhappy litigants,                                                               
for  example, of  a  judge or  justice's  alleged wrongdoing  are                                                               
completely unsubstantiated right from the outset.                                                                               
                                                                                                                                
MS.  MEADE  went  on  to   note  that  members'  packets  contain                                                               
information  about  the AJC  printed  from  the AJC's  web  site;                                                               
samples of  information the  AJC provides to  the public  via its                                                               
web site regarding judges and  justices who are up for retention,                                                               
including a sample illustrating 14  links to the various surveys,                                                               
rate studies,  and questionnaire  responses that  were considered                                                               
by  the AJC  for a  particular judge;  and, for  four judges  who                                                               
sought  retention in  past elections,  copies of  the information                                                               
that the  AJC prepared  and provided  to the  lieutenant governor                                                               
for  inclusion in  the election  pamphlets.   With regard  to the                                                               
types  of   information  provided  in  election   pamphlets,  she                                                               
explained that this information is  provided in order to help the                                                               
voters understand  more about the  judges and justices  that they                                                               
will  be  voting  on.    And   at  the  bottom  of  each  of  the                                                               
aforementioned  election-pamphlet samples,  she  pointed out,  is                                                               
located the AJC's recommendation  to the voters regarding whether                                                               
to  vote  "NO"  or  "YES"   on  the  question  of  retaining  the                                                               
particular judge.                                                                                                               
                                                                                                                                
1:22:45 PM                                                                                                                    
                                                                                                                                
MS. MEADE  said it is  the ACS's view that  those recommendations                                                               
are  crucial:    they  help   the  voters  understand  the  other                                                               
information that the  AJC provides for inclusion  in the election                                                               
pamphlet,  thereby allowing  the voters  to make  a more-informed                                                               
decision.   Members' packets also  contain copies of a  couple of                                                               
typical  retention-election  notices  that   the  AJC  places  in                                                               
various newspapers  throughout the  state; those  [2 column  by 5                                                               
inch]  notices include  the AJC's  recommendation to  the voters.                                                               
As  required  by the  Alaska  State  Constitution, six  appointed                                                               
members -  chosen on the  basis of geographic  representation and                                                               
without regard to  political affiliation - and  the chief justice                                                               
of the  Alaska Supreme Court -  serving as ex officio  member and                                                               
chair - comprise the Alaska  Judicial Council (AJC); three of the                                                               
appointed members are attorneys chosen  by the Board of Governors                                                               
of the  Alaska Bar Association  (ABA), the other  three appointed                                                               
members are chosen from the  public by the governor and confirmed                                                               
by  the  legislature,  and  the   chief  justice  votes  on  both                                                               
judicial-retention  issues  and  judicial-nomination  issues  but                                                               
only  when the  vote by  the  other six  members is  tied.   That                                                               
happens  rarely, though.   Everything  the  AJC does  is done  by                                                               
consensus, she  noted in  conclusion, adding  that many,  many of                                                               
the AJC's votes are unanimous.                                                                                                  
                                                                                                                                
MS.  MEADE, in  response to  a question,  relayed that  she would                                                               
research  how often  the chief  justice has  been called  upon to                                                               
vote on  judicial-retention issues,  though statistics  [going as                                                               
far back as 1984] regarding  the AJC's judicial-nomination votes,                                                               
for example,  illustrate that the  chief justice has  been called                                                               
upon to  vote only about  6 percent of the  time - only  67 times                                                               
out of  1116 total votes;  furthermore, in only 14  instances was                                                               
it that the public members  and the attorney members were divided                                                               
in their vote.                                                                                                                  
                                                                                                                                
1:30:43 PM                                                                                                                    
                                                                                                                                
WALTER L.  CARPENETI, noting that he'd  recently retired, relayed                                                               
that he  would be  speaking both  to the  court's position,  as a                                                               
former  chief justice  of the  Alaska Supreme  Court, and  to the                                                               
AJC's position, as  a former chair of the AJC.   Referring to the                                                               
Alaska State Constitution, he said:                                                                                             
                                                                                                                                
     I think [the AJC] ... has  three main jobs.  First, for                                                                    
     every judicial vacancy, it has  to nominate two or more                                                                    
     applicants  to   the  governor,  who  then   makes  the                                                                    
     decision  -   that's  under  Article  IV,   Section  5.                                                                    
     Secondly, with regard to  retention or non-retention of                                                                    
     judges  [and justices],  the [AJC]  ... shall  evaluate                                                                    
     judicial performance  and shall provide  information to                                                                    
     the  voters,   and  it  may  make   recommendations  on                                                                    
     retention/non-retention  -  that's  under  Article  IV,                                                                    
     Section 9, which says, "other  duties assigned by law",                                                                    
     and  you,  as  the  legislature,  have  assigned  those                                                                    
     duties, mainly in Tittle 22 but  also in Title 15.  And                                                                    
     then third,  [the AJC] ...  has to conduct  studies for                                                                    
     the improvement  of the  administration of  justice and                                                                    
     report  to  the  [Alaska]  Supreme  Court  and  to  the                                                                    
     legislature on  those studies.   So that's the  sort of                                                                    
     strict legal description.                                                                                                  
                                                                                                                                
MR. CARPENETI continued:                                                                                                        
                                                                                                                                
     I was  on [the  AJC] ...  as a  lawyer, way  back when,                                                                    
     before I became a judge,  and then, for three years, as                                                                    
     the  chief justice,  and I'd  like to  give you  what I                                                                    
     would think  [of] as the real-life  description of what                                                                    
     ...  [the AJC]  does.   It's an  incredibly hardworking                                                                    
     group of citizens.   In my time, every  year, [the AJC]                                                                    
     ... averaged  over three solid  weeks of  meetings each                                                                    
     year,  all over  the  state -  not  just Anchorage  and                                                                    
     Fairbanks  and  Juneau  and   Palmer,  but  Bethel  and                                                                    
     Dillingham  and Kotzebue,  many  of  those places  more                                                                    
     than  once  - [and  so]  a  lot  of travel  time  [was]                                                                    
     involved.    [The  AJC]   ...  literally,  every  year,                                                                    
     reviews  thousands  of  pages:   applications;  writing                                                                    
     samples;  surveys  of  lawyers,  police  and  probation                                                                    
     officers,  jurors,  court  employees,  social  workers,                                                                    
     [and court-appointed  special advocate  (CASA)] workers                                                                    
     ...  in   children's  cases;   [and]  reports   of  the                                                                    
     independent  judicial  observer [from  Alaska  Judicial                                                                    
     Observers,  Inc.].    [The AJC]  ...  looks  at  credit                                                                    
     reports; it  looks at  disciplinary proceedings  - both                                                                    
     for  sitting judges  [and  justices],  and for  lawyers                                                                    
     that  want  to  become  judges; it  looks  at  criminal                                                                    
     records  -  hopefully that's  not  a  big part  of  the                                                                    
     review;  it obtains  comments  from opposing  attorneys                                                                    
     and judges  and litigants; it holds  public hearings on                                                                    
     every  applicant for  judicial  office  and [on]  every                                                                    
     judge  up  for  retention;   [and]  it  interviews  all                                                                    
     applicants, and any sitting  judge about whom questions                                                                    
     of fitness for office have been raised.                                                                                    
                                                                                                                                
     What this  leads to is  my conclusion that  Alaska does                                                                    
     more   to  evaluate   judicial  performance   than  any                                                                    
     jurisdiction  in  the  country.   And  I  think  that's                                                                    
     something  that  we all,  and  especially  you, as  the                                                                    
     legislature,  should be  proud  of.   These are,  then,                                                                    
     volunteer citizens, unpaid, who  exist for terms of six                                                                    
     years in a kind of what  I think of as a perpetual jury                                                                    
     service:   ...  they're  doing  really important  work,                                                                    
     they're  rolling up  their sleeves  and digging  in and                                                                    
     looking  at the  facts,  and looking  at  the law,  and                                                                    
     coming to  conclusions.  They're  doing it  with regard                                                                    
     to who  sits on the  bench and  not with regard  to the                                                                    
     outcomes of  cases, but I  think it's admirable  work -                                                                    
     they deserve our respect and our thanks.                                                                                   
                                                                                                                                
1:34:20 PM                                                                                                                    
                                                                                                                                
MR. CARPENETI  - noting  that HB 200  provides an  opportunity to                                                               
discuss  the  important issue  of  how  the  public can  best  be                                                               
informed about how Alaska's judges  are performing and whether or                                                               
not  they  should be  retained  -  relayed  that there  are  four                                                               
reasons why the  legislative decision that was made  38 years ago                                                               
to provide more  information to the public should  not be changed                                                               
[by   the  bill].     The   first  reason   is  that   a  judge's                                                               
accountability  to the  public would  decrease [under  the bill].                                                               
Currently the  AJC serves  the critical  function of  letting the                                                               
voters  know  when a  judge  is  not  performing the  way  he/she                                                               
should.   A problem judge  - although historically  there haven't                                                               
been many such judges - is less  likely to be voted off the bench                                                               
if the  AJC is precluded  from making a direct  recommendation to                                                               
the voters.   The public should know, very clearly,  when a judge                                                               
is not  fit for the bench,  and the AJC  is the entity set  up by                                                               
the Alaska State Constitution and  by the legislature to evaluate                                                               
persons'  fitness for  the bench  in the  first place,  and their                                                               
continuing fitness once  they've been appointed.  Out  of the 228                                                               
individual judicial-retention elections  that have occurred since                                                               
1988, the AJC has recommended "NO"  votes on three judges.  Those                                                               
"NO" votes  were recommended because  of issues  involving mental                                                               
health - an  Anchorage judge who later admitted  that his chronic                                                               
anxiety disorder  made it impossible  for him to function  in his                                                               
judicial position;  issues involving sexual harassment  and other                                                               
serious  problems  - a  Kenai  judge  who made  really  egregious                                                               
comments and  suggestions to female  court employees;  and issues                                                               
involving unethical  conduct -  a Bethel  judge who  had improper                                                               
conduct with one side in a  case.  The Anchorage and Kenai judges                                                               
were removed by the voters, and the Bethel judge resigned.                                                                      
                                                                                                                                
MR. CARPENETI  relayed that the  second reason is that  a judge's                                                               
accountability  to  the  AJC would  decrease  [under  the  bill].                                                               
Currently, if complaints  about a judge surface  with enough time                                                               
for  the AJC  to bring  the complaints  to the  attention of  the                                                               
judge [before  he/she becomes a  problem judge], the AJC  does so                                                               
and tries to work with  the judge to encourage improvement, often                                                               
with  mentors.   If the  AJC is  precluded from  making a  direct                                                               
recommendation  to the  voters regarding  retention, however,  it                                                               
would remove the incentive for such  a judge to work with the AJC                                                               
and  comply   with  its  performance-improvement  plans.     Such                                                               
incentive  is  present now  because  judges  and justices  facing                                                               
retention elections certainly want to  avoid being the subject of                                                               
a  "NO" recommendation.    The  AJC's authority  to  make such  a                                                               
direct recommendation  is a  very useful  tool for  ensuring that                                                               
judges and  justices are  performing properly  and fairly  in the                                                               
eyes of the public.                                                                                                             
                                                                                                                                
1:37:15 PM                                                                                                                    
                                                                                                                                
MR. CARPENETI  said that  the third reason  is that  the public's                                                               
knowledge  about  Alaska's  judges and  justices  would  decrease                                                               
[under the  bill].  Currently the  AJC provides a vast  amount of                                                               
information about  judges and  justices seeking  retention, along                                                               
with what he  referred to as an  easy-to-understand "bottom line"                                                               
regarding whether  all of  the information  collected by  the AJC                                                               
shows that the  judge is fit to continue on  the bench, or should                                                               
not be retained.   Again, the AJC collects a  lot of information:                                                               
polls  from all  of  the aforementioned  groups; surveys;  public                                                               
testimony;  transcripts  of  court proceedings;  interviews  with                                                               
litigants,  other individuals,  and  the  judges themselves;  and                                                               
other  information.    Without a  direct  recommendation  to  the                                                               
voters by the  AJC - the people who've actually  dug into all the                                                               
information  - the  other information  included  in the  election                                                               
pamphlets, although unquestionably  voluminous, would be sterile,                                                               
difficult to understand, incomplete, and  much less useful to the                                                               
voters.  Survey  results alone, while helpful, may  still fail to                                                               
disclose  inappropriate conduct;  for example,  two judges  who'd                                                               
received a "NO" recommendation by the  AJC and who were voted off                                                               
the bench received, by and  large, acceptable survey ratings that                                                               
did  not reflect  the significant  problems  revealed during  the                                                               
AJC's investigations.   With full information  and understanding,                                                               
the  public  can  have  a  more accurate  picture  of  a  judge's                                                               
abilities  and  flaws;  this  helps the  public,  not  just  with                                                               
voting,  but also  with  having confidence  in  the entire  legal                                                               
system.                                                                                                                         
                                                                                                                                
1:38:50 PM                                                                                                                    
                                                                                                                                
MR. CARPENETI offered  that the fourth reason is  that the chance                                                               
of   maintaining  Alaska's   [traditionally-high]  standards   of                                                               
excellence  in the  judiciary would  decrease  [under the  bill].                                                               
Alaska  has  a  very  fine   judiciary,  and  it  would  be  more                                                               
difficult,  he  opined, to  maintain  such  with the  passage  of                                                               
HB 200.   The  Alaska  Judicial Council  was  established by  the                                                               
Alaska  State  Constitution  as an  impartial  body  designed  to                                                               
improve  justice.   One  way  to ensure  such  improvement is  by                                                               
making  recommendations regarding  whether judges/justices  ought                                                               
to be retained.   The duty to recommend against  the retention of                                                               
an  unfit  judge/justice  is  a  duty that  the  AJC  takes  very                                                               
seriously.  And  although used rarely and sparely,  this power to                                                               
make  such  "NO"  recommendations  is critical  for  purposes  of                                                               
maintaining a high-quality  judiciary.  With regard  to the AJC's                                                               
power to make a "YES"  recommendation, he offered his belief that                                                               
it's important  for voters to be  informed of the results  of all                                                               
of  the  AJC's   information-gathering  and  analyses,  important                                                               
particularly  given  that under  the  code  of judicial  conduct,                                                               
unlike candidates  for typical political  office, judges/justices                                                               
facing retention  elections cannot  campaign at all  unless there                                                               
is  already organized  opposition  to their  retention, and  even                                                               
then  they are  restricted in  many ways,  including in  terms of                                                               
raising campaign  funds.  The  AJC's simple  and straight-forward                                                               
recommendations  are the  constitutional  means by  which to  get                                                               
reliable information about judicial elections to the public.                                                                    
                                                                                                                                
MR.   CARPENETI,  in   conclusion,  opined   that  the   original                                                               
legislative decision -  to require the AJC  to gather substantial                                                               
information and present it to the  voters, and to empower the AJC                                                               
to make  recommendations to  the voters -  was sound;  to reverse                                                               
that decision would decrease  judges and justices' accountability                                                               
to the  public, decrease judges  and justices'  accountability to                                                               
the AJC,  decrease the  public's knowledge  about how  judges and                                                               
justices are performing, and decrease  the chances of maintaining                                                               
Alaska's  [traditionally-high]  standards  of excellence  in  the                                                               
judiciary.                                                                                                                      
                                                                                                                                
1:41:40 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX expressed  concern that  the AJC  has been                                                               
straying from  simply providing a  "YES" or  "NO" recommendation,                                                               
and has  instead been  using state  funds to  engage in  what she                                                               
called  a "political  advertising campaign."   She  characterized                                                               
such as inappropriate.                                                                                                          
                                                                                                                                
MR.  CARPENETI  offered his  understanding  that  there has  been                                                               
agreement [by the AJC] not to do so in the future.                                                                              
                                                                                                                                
CHAIR KELLER concurred.                                                                                                         
                                                                                                                                
REPRESENTATIVE FOSTER  surmised that that's  the issue HB  200 is                                                               
intended to address.                                                                                                            
                                                                                                                                
MR. CARPENETI - in response  to comments and questions related to                                                               
the  bill's  proposal to  preclude  the  AJC from  providing  the                                                               
voters  with a  recommendation  relating to  a  judge or  justice                                                               
seeking retention  - explained  that the  overall results  of the                                                               
information  gathered  by  the  AJC are  made  available  to  the                                                               
public; that the  statewide public hearings conducted  by the AJC                                                               
provide the public with the  opportunity to comment on the judges                                                               
and justices  seeking retention; that  the framers of  the Alaska                                                               
State Constitution were of the  consensus that lawyers themselves                                                               
would have the  best idea of who amongst their  brethren would be                                                               
qualified to  sit on  the bench; and  that the  AJC automatically                                                               
gives  less weight  to any  comments [about  judges and  justices                                                               
seeking   retention]  that   are   provided   anonymously.     In                                                               
conclusion, he  offered his belief  that in  conducting statewide                                                               
public hearings, disseminating  information throughout the state,                                                               
and polling over a thousand  people [who regularly address or are                                                               
connected  with the  court], the  AJC tries  really hard  to hear                                                               
from everyone and  does a good job of  obtaining information from                                                               
Alaskans about the judges and justices seeking retention.                                                                       
                                                                                                                                
MR. CARPENETI,  in response to further  questions, indicated that                                                               
[since  1976],  there  have  been  approximately  344  individual                                                               
judicial-retention  elections, with  the  AJC  having provided  a                                                               
total of eleven "NO" recommendations  involving eight judges, and                                                               
with four  of those judges  having been retained [by  the voters]                                                               
nonetheless.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG expressed  concern  that  HB 200  might                                                               
interfere   with  the   AJC's  constitutional   freedom-of-speech                                                               
rights.                                                                                                                         
                                                                                                                                
2:00:32 PM                                                                                                                    
                                                                                                                                
MICHAEL  PAULEY, Lobbyist,  Alaska  Family  Action, Inc.,  Alaska                                                               
Family Council,  said the organization strongly  supports HB 200,                                                               
believing that  its proposed changes would  preserve the original                                                               
intention  of the  framers of  the Alaska  State Constitution  in                                                               
establishing  judicial-retention  elections.   Referring  to  the                                                               
bill's  proposal to  preclude the  Alaska Judicial  Council (AJC)                                                               
from providing  the voters  with a  recommendation relating  to a                                                               
judge  or  justice seeking  retention,  and  mentioning that  the                                                               
organization he represents has taken  an active role in judicial-                                                               
retention  elections,  he  offered  examples of  how  some  other                                                               
states approach  the issue of judicial  evaluation/retention, and                                                               
opined  that [money  held  by  the AJC]  should  not  be used  to                                                               
provide  a  specific  recommendation  to the  voters.    Instead,                                                               
voters  should decide  whether to  retain a  particular judge  or                                                               
justice on  their own.   Indicating a  belief that  informing the                                                               
voters that  a particular judge  or justice is unfit  to continue                                                               
sitting on the bench serves no  valid public purpose and thus the                                                               
AJC  should be  precluded under  Article  IX, Section  6, of  the                                                               
Alaska State  Constitution from spending  public funds to  do so,                                                               
Mr.  Pauley shared  his understanding  of what  occurred in  1975                                                               
when  the AJC  was  initially given  the statutory  discretionary                                                               
authority to make  a specific recommendation relating  to a judge                                                               
or justice seeking  retention, and paraphrased a  quote from U.S.                                                               
Supreme  Court Justice  Scalia's  dissenting  opinion in  Planned                                                             
Parenthood of  Southeastern Pennsylvania  v. Casey  (91-744), 505                                                             
U.S.  833  (1992), to  illustrate  why  he believes  that  voters                                                               
should  be making  judicial-retention decisions  based solely  on                                                               
whether they  like a  judge or justice's  ruling in  a particular                                                               
case.  In  conclusion, Mr. Pauley urged the  committee to support                                                               
HB 200's proposed changes.                                                                                                      
                                                                                                                                
2:12:52 PM                                                                                                                    
                                                                                                                                
ROBERT FLINT, Member, Board of  Directors, Alaska Family Council,                                                               
relayed that he would be testifying  in favor of HB 200, which he                                                               
characterized as removing both the  Alaska Judicial Council (AJC)                                                               
and  what he  termed, "one-sided  public funding"  from judicial-                                                               
retention  elections.    Providing  some  historical  information                                                               
related  to the  Alaska Constitutional  Convention's drafting  of                                                               
[Article IV  of] the  Alaska State  Constitution, he  offered his                                                               
belief  that the  goal  back  then was  to  give  the voters  the                                                               
ability to  remove a judge  or justice based on  their perception                                                               
of his/her  judicial philosophy,  and therefore  the AJC  - which                                                               
evaluates  judges   and  justices  up  for   retention  based  on                                                               
different criteria - should not  now be providing recommendations                                                               
to the  voters in judicial-retention elections,  and there should                                                               
instead be  a return to how  things were done prior  to 1975 when                                                               
the  AJC   was  initially  given  the   aforementioned  statutory                                                               
discretionary authority  to provide a recommendation  relating to                                                               
a  judge   or  justice  seeking   retention.    He   offered  his                                                               
understanding that  that statutory  change wasn't  addressing any                                                               
known  problems with  Alaska's judicial-retention  elections, and                                                               
that such  elections become  contested on  the bases  of judicial                                                               
philosophy and  separation of powers,  not on the bases  by which                                                               
the AJC evaluates judges and  justices.  In conclusion, Mr. Flint                                                               
offered his belief  that passage of HB 200 would  ensure that the                                                               
AJC   won't  get   involved  in   influencing  judicial-retention                                                               
elections.                                                                                                                      
                                                                                                                                
2:24:01 PM                                                                                                                    
                                                                                                                                
LARRY COHN,  Executive Director, Alaska Judicial  Council (AJC) -                                                               
after  providing some  historical  information  and offering  his                                                               
understanding  that the  concern HB  200 is  intended to  address                                                               
revolves  around the  advertising  that the  AJC  engaged in  for                                                               
purposes of  the 2012 judicial-retention election  - relayed that                                                               
although he  has not  yet had a  chance to ask  the AJC  what its                                                               
position on  HB 200  is, he  is confident that  the AJC  would be                                                               
against the  bill for the  reasons outlined by Mr.  Carpeneti and                                                               
would  be taking  an  official  position on  the  bill should  it                                                               
proceed  through the  legislative process.   With  regard to  the                                                               
concern  HB 200  is  intended  to address,  he  surmised that  it                                                               
stemmed from  the AJC's having  responded to a campaign  that the                                                               
Alaska  Family Council  launched against  the retention  of Judge                                                               
Sen  K.  Tan.   Mr.  Cohn,  too, noted  that  under  the code  of                                                               
judicial conduct, judges and  justices facing retention elections                                                               
cannot campaign  at all unless  there is organized  opposition to                                                               
their retention,  adding that  historically, such  opposition has                                                               
been  filed just  days  before an  election,  leaving judges  and                                                               
justices with only a very limited opportunity to respond.                                                                       
                                                                                                                                
MR.  COHN explained  that since  1976, judges  and justices  have                                                               
faced organized  opposition to their  retention, and the  AJC has                                                               
always responded and the legislature  has always provided the AJC                                                               
with funding to  advertise its judicial-retention recommendations                                                               
and has  been aware  of the AJC's  responses to  such opposition.                                                               
Now  that the  AJC understands  the concern  about responding  to                                                               
organized opposition,  however, the  AJC will refrain  from doing                                                               
so.  It  would be a different thing entirely,  though, to deprive                                                               
the  public  of  the  AJC's  judicial-retention  recommendations,                                                               
because although the summarized  information the AJC provides for                                                               
inclusion  in election  pamphlets  is more  information than  any                                                               
other jurisdiction in  the country provides, and  is obtained via                                                               
a more  transparent process than any  other jurisdiction provides                                                               
for, it  is still just  a small  amount of the  total information                                                               
the AJC obtains about judges  and justices seeking retention, and                                                               
wouldn't necessarily  be reflective of problems  such as sexually                                                               
harassing others,  repeatedly engaging in unethical  conduct, and                                                               
having mental health issues, for  example, particularly when such                                                               
problems  aren't  evident  in  the   courtroom  itself.    It  is                                                               
therefore  important that  the  voters have  the  benefit of  the                                                               
process the  AJC undergoes  and its  analyses relating  to judges                                                               
and justices seeking retention.                                                                                                 
                                                                                                                                
2:31:49 PM                                                                                                                    
                                                                                                                                
MR. COHN, in response to  questions, reiterated that now that the                                                               
AJC is aware of the  aforementioned concern, the AJC will refrain                                                               
from  using  its  advertising  funds   to  respond  to  organized                                                               
opposition  to judges  or justices  seeking  retention, and  will                                                               
instead just leave  it to the judges and  justices themselves and                                                               
their supporters  to respond  to any  such campaigns.   Consider,                                                               
though,  that  when the  AJC  provides  the  voters with  a  "NO"                                                               
recommendation regarding  a judge  or justice  seeking retention,                                                               
there  is   no  other  entity   that  can  explain  why   such  a                                                               
recommendation  is being  made -  there is  no other  entity that                                                               
will advocate on behalf of the  public against a judge or justice                                                               
who is no longer  fit to serve on the bench.   He posited that no                                                               
one would  want to have  to go before  judge or justice  that has                                                               
the  kinds  of  problems  over   which  the  AJC  has  made  "NO"                                                               
recommendations in  the past  after investigation,  and expressed                                                               
the  hope that  the AJC  won't  be precluded  from providing  the                                                               
voters with such  recommendations in the future.   Again, the AJC                                                               
will  no longer  pay  for advertising  in  response to  organized                                                               
opposition to  the retention  of a  particular judge  or justice,                                                               
now that  the AJC  knows that  doing so  has raised  concern with                                                               
members of the legislature.                                                                                                     
                                                                                                                                
MR. COHN,  in response  to further  questions, indicated  that he                                                               
himself might  not object to  a proposed statutory change  if the                                                               
bill could be rewritten such that  it would only preclude the AJC                                                               
from responding  to organized  opposition to  a judge  or justice                                                               
seeking retention, but it would  depend on the exact wording used                                                               
in the bill.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LYNN  opined that  such  a  restriction would  be                                                               
appropriate to put in statute.                                                                                                  
                                                                                                                                
2:36:16 PM                                                                                                                    
                                                                                                                                
MR. COHN,  in response to  earlier questions  regarding judicial-                                                               
retention elections, clarified that the  AJC publishes all of the                                                               
details  and demographics  of its  surveys and  polls on  its web                                                               
site.  Furthermore, information from  the public about a judge or                                                               
justice  is  solicited, investigated,  and  retained  by the  AJC                                                               
throughout the  judge or justice's  entire term;  public hearings                                                               
are  held all  over the  state and  are advertised  all over  the                                                               
state;  and   reports  submitted  by   [volunteer  organizations]                                                               
trained in  observing judicial performance are  also published by                                                               
the AJC.   He  also clarified  that the  chief justice  has never                                                               
been  called upon  to vote  on judicial-retention  issues because                                                               
the votes  cast by the  other six members  of the AJC  have never                                                               
been tied.   In response to further questions,  he explained that                                                               
the names  of the  respondents to  the various  polls/surveys the                                                               
AJC  uses are  kept confidential,  as are  the specific  comments                                                               
provided by  the respondents.   Maintaining the anonymity  of the                                                               
respondents  insures that  useful  and  candid information  about                                                               
judges and  justices seeking  retention is  provided to  the AJC,                                                               
and  comments   aren't  published   because  some  of   them  are                                                               
completely untrue, and  it wouldn't be fair to  either the public                                                               
or to the judges/justices themselves  to publish them.  Also, the                                                               
AJC gives  no weight  at all  to any  comments that  are provided                                                               
anonymously,   unless  those   comments  are   substantiated,  or                                                               
corroborated, or acknowledged by [the subject of the comments].                                                                 
                                                                                                                                
CHAIR  KELLER,   referring  to   the  aforementioned   copies  of                                                               
retention-election  notices  that  the   AJC  places  in  various                                                               
newspapers throughout  the state, pointed out  that those notices                                                               
inaccurately  state  that the  AJC  is  required to  provide  the                                                               
voters  with  a  recommendation  regarding whether  to  retain  a                                                               
particular judge or justice.                                                                                                    
                                                                                                                                
MR.  COHN acknowledged  that point.    In response  to a  further                                                               
question, he explained that Alaska's  judges and justices are not                                                               
evaluated  on the  basis of  judicial  philosophy, and  indicated                                                               
that  doing so  would be  problematic; the  AJC wants  judges and                                                               
justices who are fair and neutral  and who will try their best to                                                               
follow the  law, which won't  always comport with  their personal                                                               
beliefs  or with  that  of  the voters.    [A judicial  retention                                                               
election] is  not a popularity  contest, and judges  and justices                                                               
ought  to  be  making  their  civil-  and  criminal-case  rulings                                                               
without regard to  any judicial philosophy and  without regard to                                                               
anyone's personal beliefs.                                                                                                      
                                                                                                                                
CHAIR KELLER relayed that HB 200 would be held over.                                                                            
                                                                                                                                

Document Name Date/Time Subjects
HB 200 Sponsor Statement.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Sectional Analysis.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 ver. A.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Fiscal Note-Court System.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document-Vote Yes Judge Sen Tan.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document-Sample Judicial Council Recommendations.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document-Retention Evaluation Proceedures.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document-Retention Evaluation Materials.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document-Judicial Council sample new ads.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document-Judicial Council Q&A Retention.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document-Judicial Council letter regarding advertising.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document-Judicial Council Informed Voter Statement.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document-AK Constitution-Judicial Council.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document- Judicial Council Vote Yes 2012.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document-Mike Pauley Position Paper.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document-Robert Flint Testimony.pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document-Mike Pauley Testimony (AK Family Action).pdf HJUD 4/10/2013 1:00:00 PM
HB 200
HB 200 Supporting Document-Legislative Attempts to Defund or Disempower the AK Judicial Council.pdf HJUD 4/10/2013 1:00:00 PM
HB 200