Legislature(2013 - 2014)CAPITOL 120
03/05/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 255 | TELECONFERENCED | |
| *+ | HJR 33 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 5, 2014
1:08 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Bob Lynn, Vice Chair
Representative Neal Foster
Representative Gabrielle LeDoux
Representative Charisse Millett
Representative Max Gruenberg
MEMBERS ABSENT
Representative Lance Pruitt
COMMITTEE CALENDAR
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.
- HEARD & HELD
HOUSE BILL NO. 255
"An Act relating to unmanned aircraft systems; and relating to
images captured by an unmanned aircraft system."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HJR 33
SHORT TITLE: CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
SPONSOR(s): JUDICIARY
02/28/14 (H) READ THE FIRST TIME - REFERRALS
02/28/14 (H) JUD, FIN
03/05/14 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
ERNEST PRAX, Staff
Representative Wes Keller
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Speaking as staff to the House Judiciary
Standing Committee, which Representative Keller chairs,
explained the differences between the original resolution and
the proposed resolution.
DAVE PARKER
Wasilla, Alaska
POSITION STATEMENT: Testified in favor of HJR 33.
ADAM TROMBLEY
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HJR 33.
WILLIAM F. CLARKE
Chugiak, Alaska
POSITION STATEMENT: Testified in support of HJR 33,
particularly increased geographical representation.
LOREN LEMAN
Anchorage, Alaska
POSITION STATEMENT: Speaking as a former House and Senate
legislator and former Lieutenant Governor testified in support
of HJR 33.
DAVID LANDRY
Anchorage, Alaska
POSITION STATEMENT: Speaking as a general contractor, opposed
HJR 33.
DAVE JENSEN
Anchorage, Alaska
POSITION STATEMENT: Speaking as a 40-plus year business
executive, opposed HJR 33.
GEORGE PIERCE
Kasilof, Alaska
POSITION STATEMENT: Testified regarding his opposition to HJR
33.
NICOLE BORROMEO
Alaska Federation of Natives (AFN)
Anchorage, Alaska
POSITION STATEMENT: Testified regarding AFN's concerns with HJR
33.
BENJAMIN MALLOT
Alaska Federation of Natives (AFN)
Anchorage, Alaska
POSITION STATEMENT: Concurred with Ms. Borromeo's points
regarding HJR 33.
BYRON CHARLES
Ketchikan, Alaska
POSITION STATEMENT: Testified regarding HJR 33.
WALTER L. CARPENETI
Juneau, Alaska
POSITION STATEMENT: Speaking as an employee of the Alaska Court
System for 30-plus years and as former Chief Justice of the
Alaska Supreme Court, opposed HJR 33.
ACTION NARRATIVE
1:08:20 PM
CHAIR WES KELLER called the House Judiciary Standing Committee
meeting to order at 1:08 p.m. Representatives Millett,
Gruenberg, Foster, LeDoux, Lynn, and Keller were present at the
call to order. Representative Pruitt arrived as the meeting was
in progress.
HJR 33-CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
1:10:44 PM
CHAIR KELLER announced that the first order of business would be
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.
1:12:25 PM
ERNEST PRAX, Staff, Representative Wes Keller, Alaska State
Legislature, advised that HJR 33 proposes to amend the [Alaska
State Constitution] during the next general election by offering
Alaskans the option to increase membership of the Alaska
Judicial Council from the existing three non-attorney members to
a total of six non-attorney members. He emphasized that HJR 33
is not intended disparage or attack the Alaska Judicial Council
(AJC) or the Chief Justice of the Alaska Supreme Court, but
rather to improve the nomination and selection of judges and
justices to better reflect Alaska in the 21st Century. The
three purposes of HJR 33 are: (1) enhance the AJC's vetting
process regarding nomination and retention recommendations for
judges and justices; (2) enhance the AJC's credibility in the
minds of the general public; and (3) protect the Chief Justice
from partisan attack. Under the Alaska State Constitution and
the AJC by-laws, the Chief Justice's vote is required to break a
tie or when his/her vote could change the outcome of a
particular vote being taken. Over the past two years certain
votes by the Chief Justice have been placed under scrutiny, and
thus Mr. Prax suggested that "regardless if there has been a
problem there or not, let's act preemptively and help the Chief
Justice out and reduce his likelihood of being subject to
partisan attack for votes that they take."
1:15:32 PM
MR. PRAX then opined that the AJC's membership [currently]
hampers its constitutional responsibility to properly represent
Alaska's diverse geographic and cultural makeup as outlined in
Article 4 of the Alaska State Constitution. He paraphrased the
Alaska State Constitution, Article 4. House Bill 33's proposal
to increase Alaska Judicial Council's non-attorney membership to
six members would allow the state to meet its constitutional
mandate and acknowledge that Alaskans are more connected in
terms of travel and enhanced information than in the 1960s.
With regard to the appearance of a conflict of interest in the
minds of the public when the Chief Justice is required to cast a
tie-breaking vote, Mr. Prax pointed out that the Chief Justice
possesses the final determination in a candidate's name moving
forward or not forwarding it to the governor; the candidate may
directly or indirectly work with the Chief Justice in the
future. "There have been votes that reflect this occurring and
there has been concerns," he stated. Mr. Prax then turned to
the issue of an imbalance of proportional representation in
which the attorney members outnumber the non-attorney members.
Mr. Prax related his understanding from a discussion regarding
[SJR 21], wherein there was said to be approximately 4,200
members of the Alaska Bar Association with approximately 3,000
members active. If the approximate number of Alaskans, 735,000,
was divided by the members of the Alaska Bar Association, the
members of the Alaska Bar Association represent approximately
0.5 percent of the state's population, yet they make up 57
percent of AJC's voting power. In contrast, the non-attorney
population represent the remaining approximate 99 percent of
Alaska's population has 43 percent of the voting power within
AJC. Therefore, HJR 33 seeks to restore balance and offer non-
attorneys a greater voice in vetting candidates for judges and
justices. Mr. Prax submitted that HJR 33's proposals are not
hard and fast solutions, but are before the committee for
discussion.
1:20:49 PM
MR. PRAX directed attention to proposed CSHJR 33, Version 28-
LS1509\U, Wallace, 3/3/14, in committee members' packets. He
explained that Version U embodies changes in HJR 33 such that
all of the AJC's attorney and non-attorney members must be
confirmed by the legislature. He further explained that the
current voting policy will be such that the AJC acts by a
concurrence of five or more members and according to the rules
which it adopts, he explained.
CHAIR KELLER opened public testimony.
1:22:35 PM
DAVE PARKER, speaking as a citizen of Wasilla with a background
in law enforcement, informed the committee that in March 2013,
he began his term as a non-attorney member on the Alaska
Judicial Council. He then offered three reasons he supports HJR
33. First, HJR 33 would bring more accountability to the AJC as
it would connect to more citizens of Alaska. He opined that the
judicial council is solely accountable to the people of Alaska
and increasing the number of non-attorney members offers better
representation of the populace and opens the door to additional
diversity, input, and accountability. Second, he said he
believes HJR 33 will provide more balance to the judicial
selection process and review of sitting judges. He surmised
that all of the AJC members appreciate the input of the Chief
Justice and attorney members of the council as attorneys
understand the finites and the vagaries of Alaska's judicial
system better than other council members. However, he opined,
the AJC is heavily weighted with four of seven votes being from
Alaska Bar Association members; not confirmed by the
legislature. There is additional influence from the Alaska Bar
Association since the director of the AJC is a member of the
Alaska Bar Association and the bar survey is a main source of
information used to determine whether or not a candidate is
chosen. The influence of the Alaska Bar Association, a
specialized group, would be mitigated by HJR 33, which would
bring the AJC closer to Alaskans. Third, a simple majority
requirement strengthens each vote on the AJC, he noted, as it
currently requires four votes to forward a name. The four of
six or seven votes provides more weight for a negative vote than
a positive vote. Subsequent to vetting by the AJC, an AJC
applicant receives final vetting from the governor. Mr. Parker
submitted that HJR 33 will enable citizens more participation in
the entire process.
1:30:16 PM
ADAM TROMBLEY advised that he supports HJR 33 for all of the
reasons of the previous witness, including Mr. Prax. He advised
he is a member of the Board of Governors of the Alaska Bar
Association and supports the increase of non-attorney judicial
council members. In response to Representative Gruenberg, Mr.
Trombley said that he sits on the Anchorage Municipal Assembly.
1:32:09 PM
WILLIAM F. CLARKE noting he has lived in Alaska since 1978
informed the committee that his background is 20 years as a
pilot in the U.S. Air Force with two combat tours in Vietnam.
He further informed the committee that in 1984 he retired from
the U.S. Air Force and until 2005 was employed with an
engineering firm in Anchorage for 16 years, and until February
2013 was a [non-attorney] member of the AJC. He expressed his
agreement with Mr. Parker and Mr. Prax as HJR 33 offers the
council nine voting members, which helps to prevent tie votes.
He submitted that the resolution doubles the number of public
members "which is absolutely necessary," and attorney members
stay at three "which is adequate." He expressed HJR 33 is not a
criticism of attorney members who serve on the council as they
are very professional, especially Kevin Fitzgerald and Julie
Willoughby. He offered that HJR 33 would pass "comfortably" if
put to a public vote. The public membership on the AJC needs to
be increased in order to achieve geographical representation
which HJR 33 will remedy by adding three non-attorney members.
If the aforementioned seems inadequate, he suggested the
possibility of increasing the number of non-attorney members to
11; keeping it at an odd number. He noted that although the
current ratio with the bar and general public is approximately
1:180 and that couldn't be mimicked, the ratio should be
respected by increasing the membership. With regard to comments
that a split vote of 3:3 is "rare," Mr. Clarke disagreed,
especially during the last two years when [Alaska] Supreme Court
vacancies were considered. In fact, public members were
overridden three times. Mr. Clarke recalled to two very good,
highly qualified and unimpeachable judge applicants who were
trumped by a tie-breaker from the Chief Justice at the time. He
noted that no reason was given for not choosing the applicants.
1:38:05 PM
REPRESENTATIVE GRUENBERG interjected a point of order and stated
the Alaska Open Meetings Act exception provides that personnel
matters are not discussed in open session as the merits of a
charge cannot be determined. He requested that personalities be
solely discussed in executive session or disregarded.
CHAIR KELLER instructed Mr. Clarke to take heed of
Representative Gruenberg's comments and not discuss
personalities.
1:39:22 PM
MR. CLARKE reiterated that he is in favor of HJR 33 as it offers
better representation of the populous of Alaska and also
increases the number of candidates presented to the governor for
his/her final decision.
1:40:47 PM
REPRESENTATIVE GRUENBERG said he did not object to Mr. Clarke's
general comment that more names should be presented to the
governor, but advised that specifics in a given case should not
be discussed in an open meeting.
1:41:22 PM
LOREN LEMAN, a former State of Alaska Representative, Senator
and Lieutenant Governor, testified in support of HJR 33. Mr.
Leman said the Alaska State Constitution, although it's a good
constitution, it's not perfect and has been amended 28 times, of
which he was involved in four amendments. He noted agreement
with the comment that amending the Alaska State Constitution
should not be taken lightly. When legislators analyze and
evaluate how well the Alaska State Constitution works or does
not work, today's legislators enjoy the benefit of 55 years of
hindsight. He opined that a better process for submitting names
[to the governor] for judges and justices could exist because
the current process is dominated by members of the Alaska Bar
Association as they control four of the seven seats on the AJC.
1:46:21 PM
REPRESENTATIVE MILLETT recalled a comment that during the
territorial days there were not many attorneys, which is one of
the reasons the AJC was so small. She acknowledged that times
have changed and the Alaska State Constitution may require
updating in view of Alaska's current population base. She then
offered that it is difficult to locate information regarding how
the judges treat people before them and control their courtrooms
and Alaskans seem to automatically vote yes on the question of
whether to retain judges without any knowledge of what the
judges do. A flaw, she identified is that a poll [by the Alaska
Bar Association] is not performed on a sitting judge.
MR. LEMAN responded it is "good" when information is available
and transparent so voters can make informed and form
knowledgeable decisions. He agreed that the number of attorneys
available to serve in the earliest days of statehood was small
and estimated Alaska's population has multiplied approximately
five-to-six times since the delegates met in 1955-1956.
Therefore, today there are a lot more attorneys in Alaska as
well as a lot more people.
1:49:03 PM
REPRESENTATIVE LEDOUX offered that she is not sure there is a
need to change the makeup of the AJC and expressed interest in
reviewing the recommendation process of the AJC which is not a
constitutional mandate and was authority given by the
legislature. She expressed concern that a governmental body
recommends that an individual be retained or not retained. In
the context of legislative campaigns, she stated she would feel
uncomfortable if a quasi-official or official body ran ads that
a certain representative should or should not be retained.
MR.LEMAN said he shares Representative LeDoux's concerns about
retention recommendations and noted recent actions in which
public monies were used to recommend retention or non-retention
and which caused him great angst. He pointed out that many
other boards and commissions in state government have more
members than the AJC. The Alaska Bar Association Board of
Governors has 12 members; the University of Alaska Board of
Regents has 11 members; the Workers Compensation Board has 18
members; and the Alaska Commission for Judicial Conduct has 9
members. As an example, he explained that the Board of
Registration for Architects, Engineers, and Land Surveyors
members must be nominated by the governor and confirmed by the
legislature. Although the professional society may play a role
in suggesting names it has no authority to forward names and
certainly not without legislative confirmation. Effectively,
the Alaska Judicial Council panel of seven members has three and
occasionally four members with the power to determine the
composition of one of Alaska's three branches of government, he
opined. He further opined it is a mistake to put that much
power in the hands of so few people, especially since three of
the members chosen by the Alaska Bar Association are accountable
exclusively to the Alaska Bar Association. The aforementioned
he argued, creates a fundamental problem with accountability
because those members are not selected by the governor nor are
they required to stand for legislative confirmation as public
members are required. He explained that in a representative
democracy it is important a clear majority of council members
are selected through a process more accountable to the people.
Opponents to HJR 33 may testify that the system is fine and it
has served Alaskans well for 55 years and "don't fix what isn't
broken." While he acknowledged the process has allowed the
selection of some very fine judges who have served with
distinction, it has also prevented extraordinarily qualified
people from being considered by the governor, which he opined is
wrong. He further opined that all qualified names should be
advanced, including those who may not share his judicial
philosophy, but stated there are examples in which the AJC
hasn't done that. He reiterated that effectively the Alaska
Judicial Council selects judges, who sit on the Alaska Supreme
Court.
1:55:57 PM
MR. LEMAN said he disagreed with former Chief MR. CARPENETI's
testimony that HJR 33 would destroy the merit system, and
maintained that HJR 33 continues the merit systems and allows
Alaskans input through its public members. He addressed
concerns that HJR 33 will inject politics into the selection
system and contended that politics are already injected into the
selection due to the monopolization by the Alaska Bar
Association members. Balance is offered to [the Alaska
Judicial Council] through HJR 33, he opined. The resolution
offers greater opportunity for people from rural Alaska to
serve. He then noted that an Alaska Native has never served on
the AJC. Mr. Leman related his belief that Alaskans deserve the
right to consider this important question at the next election
and urged the House Judiciary Standing Committee's support for
HJR 33.
1:57:54 PM
REPRESENTATIVE GRUENBERG speaking to Mr. Leman questioned
whether there is a difference between how many people are on the
AJC, what their views have been or are, and who appoints them.
The resolution would place three additional people on the
council, but they would all be appointed by the governor.
Therefore the number of gubernatorial appointments on the Alaska
Judicial Council would be doubled. He then questioned if there
is the potential for misuse in authorizing that much power in
the hands of only one person, the governor.
MR. LEMAN, noting that he does not know who will be future
governors, said he would like to think of the Alaska State
Constitution as being relatively timeless and that the changes
the legislature makes ought to be appropriate over time.
Furthermore, although the writers of the Alaska State
Constitution created a constitution that vests a lot of power in
the governor, that power is tempered by the pre-selection
process of the AJC. The governor appoints members to the AJC
and the legislature confirms them. Mr. Leman said he would not
be opposed to legislative confirmation of judges.
2:01:54 PM
REPRESENTATIVE MILLETT pointed out that the U.S. President does
not go through a judicial council as he/she appoints all of the
U.S. Supreme Court Judges who are then confirmed by the U.S.
Senate, which is an existing model of politicizing the selection
of judges.
MR. LEMAN explained that Alaska does not have quite the same
model in state government that is provided for in the U.S.
Constitution. He related it would inappropriate if he said he
wouldn't be opposed to confirmation by the Alaska Senate because
Alaska has vested so many of its authorities and powers into
both the House and Senate. Rather, he suggested, the
legislature in joint session could [provide confirmation], which
would counter the concern that one individual, the governor, has
too much power.
2:03:34 PM
REPRESENTATIVE GRUENBERG noted that due to the U.S. model [U.S.
Senate confirmation] many judges have not been able to be
confirmed, and thus he didn't believe that to be a model to
follow. He then turned attention to [HJR 18, which proposes to
divest the governor of the ability and the legislature of the
current method of [appointing] the attorney general. He pointed
out that [HJR 18] is directly counter to HJR 33 in that HJR 33
provides for more people to be appointed by the governor.
Whereas [HJR 18] eliminates the governor's ability to appoint
one individual for the position of attorney general, and
proposes that the attorney general be elected.
MR. LEMAN responded that the selection of the attorney general
is an example of the power the founding fathers gave to the
governor; which illustrates that Alaska's founders intended a
strong governor. He recalled that both former Territorial
Governor and U.S. Senator Ernest Gruening and former Territorial
Governor Mike Stepovich related angst with the lack of power in
their position of territorial governors. He reiterated that the
writers of the Alaska State Constitution stipulated a strong
governor and intended decisions be made in Alaska by an
individual who is accountable to the people.
2:08:00 PM
DAVID LANDRY, noting that although he is a general contractor in
Anchorage, he is representing himself and related his opposition
to HJR33. He opined that HJR 33 pointedly undervalues the
professional knowledge that attorneys bring to the table during
the process of selecting Alaskan judges. Furthermore, prior
testimonies mischaracterize the nature of the Alaska Bar
Association. In his profession, he related, when it is
necessary to replace a subcontractor or vendor, his first order
of business is to obtain his colleagues' opinions as to who does
good work, shows up, and is honest. He emphasized that his
professional colleagues are an important resource in his
business. He expressed that the current makeup and balance of
the AJC accesses knowledgeable professional experience in a
similar manner. Although most cases before judges are fighting
for opposite outcomes, the one thing the attorneys have in
common and benefit from is a fair and competent judge. He said
he found fault with the underlying characterization from
previous testimony that allege the Alaska Bar Association is
getting together to "pull one over on everybody else." He said
he is relatively confident the members of the Alaska Bar
Association do not have a prior to the AJC meeting to decide how
the [attorney members] will vote. Moreover, three attorney
members are also citizens of Alaska with their own political
views; mischaracterizing the members of the Alaska Bar
Association as another "species" voting on Alaska's judges is
wrong as they have professional background knowledge and
personal experience with the individuals applying to be judges.
Although the testimony of Mr. Leman and Mr. Prax pitched the
idea that HJR 33 would be the people's voice in picking the
judges, Mr. Landry opined the HJR 33 would substitute the
governor's voice. He further opined that the current judicial
makeup is a problem only for those interested in politicizing
the judiciary, which he is not. A lot of people have spoken in
the name of Alaskan citizens saying they want this, bur Mr.
Landry said, "I don't want this." He stated his intention is
for judges to be chosen by merit, by individuals who have worked
with the [candidates], know the law, and can help put forth
fair, consistent, and good judges. He stated his opposition to
political ideologues being put on the bench for that very
reason.
2:13:22 PM
DAVE JENSEN paraphrased from the following written remarks
[original punctuation provided]:
I am testifying in regard to SJR 21 [HJR 33]. I have
been an executive in Alaska for 40 years, most of that
time with private, for-profit corporations.
I am business executive with no connection to the
legal system and no involvement with politics. It is
from the viewpoint of a business executive that I
offer my testimony regarding SJR 21 [HJR 33].
I think that SJR 21 [HJR 33] is a bad idea, and will
be bad for private business in Alaska and here is why.
As a business executive, I tried to keep the affairs
of the companies that I ran out of court. But
sometimes there was no alternative, and when that
happened, all I expected was a judge who was impartial
and professional.
I was not disappointed by the Alaska court system,
because every time that I did have to go to court, I
got a judge who was impartial and professional, with
no private agendas or axes to grind. I did not agree
with every decision made by every judge in every case
I was involved in, but I always felt that the judge
was impartial and professional.
It was always a comfort to me to know that the judges
in Alaska get to be judges in part because they are
well regarded by their fellow professionals. I would
never go to a doctor unless I knew that he was well
regarded by his colleagues in the medical profession,
and I feel the same way about lawyers and judges.
The practical effect of SJR 21 [HJR 33] will be to
remove professional qualifications from the selection
of judges and to substitute political loyalty for it.
In making appointments to the Judicial Council, the
governor will appoint people who are loyal to him, to
his party, and to his way of thinking. Those people
will owe their appointment to him, and will repay him
by sending him the names of judicial candidates who
are loyal to, and allied with, the governor. And he
will appoint those people, based on their political
loyalties instead of their professional
qualifications.
In a complicated commercial dispute, I could care less
about a judge's political leanings: I want a judge who
is smart enough, and well regarded enough in the
profession, to sort through the complicated commercial
tangle and come up with a decision that gives
certainty to businessmen who are trying to run a
business, plan their investments, and make a profit.
What I do not want is a political hack that has no
professional qualifications other than that he is a
friend of the governor.
If SJR 21 [HJR 33] is approved and the constitution
amended, the effect will be to centralize power over
the judiciary into the governor's office. The checks
and balances that the framers built into the
constitution will be weakened because the judiciary
will no longer be a truly independent branch of
government.
Finally, the supporters of SJR 21 [HJR 33] need to
remember that the tides of politics come and go. The
pendulum will swing one day, to a different group of
political thinkers and leaders. When that happens, if
power over the judiciary is centralized in the
governor's office, the judiciary will change as well.
The private sector is best off if it has
professionalism, neutrality and certainty in the
judicial system. A judicial system that changes with
the changing winds of political thought is a drag on
the economy and destructive of true prosperity. When I
was the Vice President at Reeve Aleutian Airways, I
had occasion to deal with a political judiciary,
because Reeve ran routes to Russia. And I bear the
scars to prove that the political nature of the
Russian judicial system made for an incredibly
difficult business environment. Let's not move in that
direction here. Thank You
2:17:02 PM
REPRESENTATIVE LEDOUX surmised that Mr. Jensen believes with the
passage of HJR 33 the judiciary would end up with a "bunch of
political hacks," and then questioned his view of the federal
judiciary, which is intellectually qualified but is appointed by
the president.
MR. JENSEN related that the federal judiciary system is
troublesome in that it resembles a pendulum that swings one way
or the other depending upon the party of the president. Since
politics ebbs and flows with different parties coming into
office, he expressed concern with providing one individual with
too much power. He opined that the goal for the judiciary is to
be immune from that type of political "tug and pull, ebb and
flow." He then that Alaska has a good system that should not be
changed. The federal government's system is not necessarily
good but it is certainly not the system used in Alaska, he
further opined.
2:18:52 PM
REPRESENTATIVE MILLETT quiered whether Mr. Jensen's impression
is that the AJC system is politically impartial. Recalling
Republican Governors Murkowski and Palin rejecting names put
forward for the AJC, Representative Millet asked if Mr. Jensen
believes that there could be political leanings in the current
selection process.
MR. JENSEN responded he did not believe there ever would be a
perfect system to satisfy everyone's approach. However, he
related his belief that when professionals are selected they
must be well regarded by their colleagues, which in this case
would be from the Alaska Bar Association. He opined there must
be a balance with professionals that can qualify that individual
based upon their experience and skills. While it is not always
perfect and there may be someone that should have or should not
gotten in, that is life, he further opined. To change from the
current system and put it in the governor's office, he
expressed, is a profound change that will disrupt the
impartiality of a judge who is ultimately deciding a dispute on
the bench. Recalling his times as Vice President at Reeve
Aleutian Airways Reeve Aleutian Airways served Russia with a
lawsuit. He witnessed Russia's political judiciary system first
hand and remarked that its political structure caused difficulty
doing business. Therefore, Mr. Jensen reiterated his opposition
to Alaska having a political judiciary that is the result of the
election. Alaska's current system is the most balanced system
to move forward, he noted.
2:22:11 PM
REPRESENTATIVE MILLETT said she disagreed with Mr. Jensen's
comparison of the Russian judiciary to the Alaskan judiciary.
She said that she agrees with HJR 33, but opined that Alaska is
far from the corruption Reeve Aleutian Airway encountered when
flying back and forth to Russia. She characterized it was a
harsh distinction.
MR. JENSEN clarified that he did not intend to be harsh, and
explained that his comparison with Russia was that he didn't
trust the system and does not want the Alaskan court system to
ever be questioned because it may have become political or
perceived as beholding to the governor. As a businessman
working in Alaska, he reiterated the need to know the judge is
impartial, professional, and able to render appropriate
decisions.
2:24:48 PM
The committee took an at-ease from 2:24 p.m. to 2:25 p.m.
2:27:13 PM
REPRESENTATIVE LEDOUX related that she shares Mr. Jensen's
concerns about politicizing the bench on "hot button" social
issues; yet she understood his concern was more about having a
smart and honest judiciary. On the federal bench, under a
republican or democratic administration a judge may lean more
conservatively or more liberal, respectively, but in regard to
business and litigation questions, there is a high bar for the
federal judiciary, she opined. From the perspective of business
Representative LeDoux said she was uncertain why Mr. Jensen
would be concerned.
MR. JENSEN responded that his business dealings did not rise to
the federal level as all of his judiciary business dealings have
been in Alaska. Alaska, he opined, does not want to appear to
be following the federal government by changing the Alaska State
Constitution. He further opined that with respect to the AJC
and its makeup, the current Alaska State Constitution language
presents and provides a very fair and balanced means to offer
[judges] that have, in every case in which he has been involved,
been impartial judges. If the desire is to parallel the federal
system, Alaska's system would potentially be politicized. He
specified that his testimony is solely in regard to the Alaska
Judiciary System and in particular HJR 33, whereas discussions
regarding the federal government are "outside my pay grade."
2:30:32 PM
REPRESENTATIVE GRUENBERG questioned if Mr. Jensen was aware that
the Alaska selection method is based upon the "Missouri Plan."
He explained that Americans had not always been happy with the
federal judiciary plan as within the "New Deal" there was a very
concerted effort to pack the U.S. Supreme Court, which was
rebuffed. He indicated there is a similar attempt [embodied in
HJR 33] to pack the AJC in Alaska, which he expected would also
be rebuffed. Federally, he noted, the chief executive names an
individual to a court and [the U.S. Senate] holds extensive
hearings and discusses qualifications more than Alaska vets of
members of the AJC. Usually, AJC candidates come before the
[state] legislature for a few questions and are routinely passed
on, he opined.
MR. JENSEN stated he had not been aware the Alaska framers used
the "Missouri Plan" as a basis. He offered belief that the
profession is being looked after by professionals within the
current makeup of the [AJC]. The Alaska Bar Association is a
professional organization and the public's regard for that
profession and the Alaska Court System should be based upon a
feeling of complete trust that the Alaska Bar Association is
made up of professionals. As mentioned in prior testimony,
there are certainly lawyers that may not be held in high regard
by their peers, but he said he does not think having that
morphed into the judicial system with respect to judges and
[justices] should ever happen. "If the judicial system believes
there is a bad judge, they tell us and I get to read the
pamphlet about that; and they have done that, he pointed out.
Whether the respected members of [the AJC] can agree on the
qualifications of a judge is always open to dispute, which, he
opined occurs in any committee. Allowing the governor to
appoint citizens to a committee which should be based upon
professional qualifications would cause problems in terms of the
perceptions of the justice system in Alaska, he opined.
2:37:41 PM
REPRESENTATIVE PRUITT, regarding Representative Gruenberg's
comment that a lot of time the legislature glosses over
[appointees] to the AJC pointed out that a few years ago the
name of an appointee to the AJC was withdrawn due to the
legislature. Therefore, the legislature does its due diligence
and deserves credit for asking questions of the appointees. If
something were to change, the legislature would still perform
its role, he opined.
2:38:44 PM
GEORGE PIERCE characterized HJR 33 as a very bad resolution that
he opposes. He expressed that HJR 33 could shift the balance of
the judicial system, which is not broken and has been around
since statehood. "We need to stay out of the constitution," he
stated. In fact, a few years ago the voters opposed a
constitutional convention. The AJC's makeup, he remarked,
should not be [based] on the Alaska State Legislature or the
American Legislative Exchange Council's (ALEC) agenda. He
opined that HJR 33 is "stacking the deck" and is a waste of
time. The resolution offers that non-lawyers would make
decisions, which he opined, isn't a good idea. He then charged
that the governor is not known to make good appointments.
Within the last 39 years, the Chief Justice voted 15 times to
break a 3:3 tie. Mr. Pierce suggested the [legislature] stop
what it is doing [with HJR 33] as the existing system has worked
since statehood.
2:41:58 PM
NICOLE BORROMEO, Alaska Federation of Natives (AFN), offered
that the Alaska Federation of Natives (AFN) has three concerns
with HJR 33 and offered the following statement:
First concern is that Alaska's Constitution is widely
acknowledged as one of the best constitutions in the
country. Accordingly, AFN believes there should be a
clearly demonstrated reason to amend our state
constitution before such a process is undertaken. Mr.
Chairman and members of the committee, there is simply
no evidence that suggests that the judicial council
has failed to function effectively or efficiently in
performing its duties. In fact, Alaska's judiciary
has been free of the corruption, scandal, and other
ills that have plagued other non-merit based systems
and this is largely due to the efforts of the Judicial
Council. Second, HJR 33 seeks to increase the number
of Judicial Council members for a host of reasons
including guarding against attorney dominance. Again,
AFN believes there should be clearly demonstrated
evidence of such dominance. However, no evidence
exists or knowledge to support the proposition that
attorneys out-will non-attorneys in the selection of
judges. In fact, AFN understands that in the last 30
years only 15 of the approximate 1,100 votes cast by
the Judicial Council has resulted in a split between
attorneys and non-attorneys. Finally, the fiscal note
submitted by the Alaska Judicial Council shows an
increase cost of $12 thousand dollars for each fiscal
year in 2016-2020. AFN believes this increase in $60
thousand dollars is entirely unnecessary for the
reasons we stated earlier, and by the previous
commenter, and suggest that these funds could be
better spent elsewhere. Thank you for your time and
consideration of our comments.
2:44:00 PM
REPRESENTATIVE GRUENBERG questioned Ms. Borromeo if she was
aware that within the operating budget the AJC requested an
increment of $20,000 which could have been used to make certain
...
2:44:26 PM
REPRESENTATIVE MILLETT interjected a point of order stating that
Representative Gruenberg's comment is a budget related issue and
is not regarding HJR 33. She requested the committee members
not discuss reductions in the operating budget, especially since
it has yet to go to the floor.
REPRESENTATIVE GRUENBERG responded he was not planning to
[discuss the budget], but the testimony as to the cost of HJR 33
[opened the door] to discuss [the budget]. His intention, he
clarified was to describe the increase in [monies within HJR 33]
while money for the AJC was not being increased.
2:45:19 PM
BENJAMIN MALLOT, Alaska Federation of Natives (AFN), stated he
has the same points as Ms. Borromeo.
2:45:42 PM
REPRESENTATIVE FOSTER asked if AFN's Resolution was passed by
the AFN Board or passed at the October annual meeting in
Fairbanks.
MS. BORROMEO responded the AFN Resolution was passed by the AFN
Legislative and Litigation Committee, in February. The
committee acts as the full board between regularly scheduled
board meetings, she advised.
2:46:23 PM
BYRON CHARLES likened the [House Judiciary Standing Committee]
to an administrative body with some powers and authority. He
questioned why a representative from the local community,
including the federal government, [is not] sitting there as part
of the decision making and stated that if those individuals were
included many conflicts would be alleviated on a government-to-
government level.
2:48:00 PM
WALTER L. CARPENETI [appointed to the Alaska Supreme Court in
1998 and served as the 16th Chief Justice from 2009 to 2012]
states he is representing himself and no other entity. He
offered that there are three reasons not to advance this
resolution. He also offered that this subject matter is not one
involving an attorney verses non-attorney split on the AJC.
During the last two years there are possibly three votes with
which people are unhappy, but the Alaska State Constitution has
endured for 55 years and has been amended only 28 times,
including technical amendments such as changing the name from
the Secretary of State to the Lieutenant Governor. Amending the
Alaska State Constitution should be entered into carefully and
only with a very good reason, he opined. Since the beginning
there have been over 1,100 votes of which only 15 votes were
split between non-attorney members and attorney members. "You
just don't have a problem in my view." The facts do not bear
out a generalized claim of attorney dominance with the attorneys
"running the show" as the count is 4:3 because the Chief Justice
is obviously an attorney. He reiterated not to lose sight of
the aforementioned facts because this resolution would require a
change in a system that has worked well. He maintained there is
a heavy burden on those who would amend the Alaska State
Constitution to show that something is not working as opposed to
hypothetical and generalized talk of accountability or citizen
participation. He then underscored that all of the lawyers are
citizens. When an individual states Alaska's judicial selection
system is not working, he said he contemplates whether Alaska
has judges being indicted, involved in scandals, receiving kick-
backs, or the sort of problems realized in other [state]
judiciaries. However, those types of events do not take place
in Alaska's judiciary system. Mr. Carpeneti then stated that he
takes slight exception Mr. Leman's testimony and clarified that
he did not say that [HJR 33] would destroy the merit system, but
rather said it "could" destroy the merit selection system which
should give supporters of [HJR 33] pause. He explained that
[HJR 33] "could" destroy the merit system as currently no entity
controls the names that go to the governor and if legislators
insist on thinking of lawyers as non-citizens or lawyers on one
side and citizens on the other, remember the numbers illustrate
that has hardly ever happened. Once [HJR 33] changes the
composition of the system to six non-attorneys and three
attorneys, the legislature has given the governor the right to
specifically determine the composition of the panel. Currently,
the governor does not have that power and the framers thought
hard about whether the governor should have that power, he
further explained.
2:51:56 PM
MR. CARPENETI commented on Mr. Leman's statement about Alaska's
strong governor system, admitted he has not read every
constitution of every state closely, but he does have the firm
opinion that Alaska's framers intended Alaska to have the
strongest governor in the United States. He said the framers
wanted accountability to rest with one person, which is why
Alaska's attorney general is not elected. The only elected
positions statewide are the governor and lieutenant governor and
everyone else, including the lieutenant governor, is accountable
to the governor, which is a very clear responsibility in the
state's system. Alaska's framers weighed how much power the
governor should have and even though they made Alaska's governor
one of the strongest governors in the United States, the framers
stopped short of providing the governor the authority to choose
the majority of citizens who would nominate Alaska's judges, he
noted. He specifically stated that Alaska's framers created
that system wherein the judiciary would have a certain amount of
independence; if the governor has the authority to name the
majority of the nominees, there will be nominees representing
the governor's point of view as that is the nature of a
political system.
2:53:13 PM
CHAIR KELLER requested clarification whether Mr. Carpeneti is
saying the reason Alaska does not have problems like those in
other states is because Alaska has an attorney-dominated
judicial council that's small.
MR. CARPENETI replied "no," the AJC is not an attorney-dominated
system rather it is evenly balanced. He reiterated that out of
over 1,100 votes there have only been 15 occasions in which the
attorneys and non-attorneys split evenly and the Chief Justice
had to make a decision. According to the figures he has been
given, which he expressed the need to recheck, on 10 of those 15
occasions in which there was a split the Chief Justice agreed
with the attorneys and on 5 occasions the Chief Justice agreed
with the non-attorneys. Mr. Carpeneti recalled he had three
occasions to vote as Chief Justice of which twice he agreed with
the non-attorneys and once he agreed with the attorneys. Two of
those occasions the vote was to send names to the governor and
one occasion the vote was not to send a name to the governor, he
offered.
2:54:23 PM
MR. CARPENETI noting his respect for Mr. Leman said he took
exception with Mr. Leman's comment that "politics are already in
the system." Speaking from his own experience, Mr. Carpeneti
described a situation in which a friend asked whether one of his
colleagues on the Supreme Court was still real conservative.
Mr. Carpeneti explained that he was shocked because for several
years someone that he sat with in a very intimate political
setting was a person who was a cipher to him in terms of
answering that question. He opined that it was good that he
could not tell whether one of his colleagues was conservative or
not conservative, because in terms of the selection process and
in terms of what the court does when judges are considering
cases, those kinds of issues just don't come up. "They are not
part of what we do," he said. Perhaps Mr. Leman was saying that
politics are already in the system as some of the people on the
council vote one way or another based on what they think someone
will do in the future on a particular case. If that's what Mr.
Leman meant, Mr. Carpeneti said he does not know if that is true
or not. He informed the committee that he was on the AJC as a
lawyer in the early 1980s and again as the ExOfficio Chair as
the Chief Justice from 2009-2012, and never in either of those
appointments had he ever heard somebody say how a person would
vote on an issue. Those things just don't come up in the
council, he opined. He depicted that the governor receives
names of people who the AJC members believe, whether they are
liberal or conservative or even have an idea about those things,
will be careful lawyers who will read the record, act with
integrity and respectful of both sides, keep their minds open
until they've heard all of the arguments, hold discussions with
their colleagues, and will be good judges [of the applicants].
He expressed fear that some of those values may be lost in a
system in which the governor appoints the majority of the people
on the AJC. The framers were brilliant in setting up a two-
stage merit/political selection process. He explained that the
first stage, the merit stage, is when a candidate applies to the
AJC and it reviews the professional reputation, intelligence,
writing skills, fairness and integrity, and all of the
attributes an individual would hope to find in a judge, and the
AJC then sends the best of those candidates through to the
governor. The second stage is the political stage when the
governor who is there as a result of politic, chooses from among
the candidates that hopefully are all going to be excellent, the
one that is closest to his or her views. Mr. Carpeneti stated
that elections have consequences and should have consequences
and the proper place for politics to enter into the selection
process is [at the second stage] with the governor. He opined
that Alaska's framers wisely decided there should be a check
[included in the selection process], which is the retention
election that occurs three years after a judge has been on the
bench. He stated that [HJR 33] essentially gives the governor
the power to say what the governor wants. Although the
candidates may meet all of the aforementioned attributes, they
may not, which is why he stated it could lead to the destruction
of the merit system. "It is not worth that risk, in my
opinion," he said.
2:59:57 PM
REPRESENTATIVE MILLETT questioned whether MR. CARPENETI would
feel more comfortable if the six individuals the governor
appointed were attorneys and considered fair and competent and
in good standing with the Alaska Bar Association.
MR. CARPENETI answered that he would be "perhaps minimally less
uncomfortable, but that's damning it with faint praise."
Clearly, he stated, in making any selection the governor will
choose individuals - whether attorney or non-attorney - along
the same line of thinking as he/she, which is appropriate except
when there is a majority of those people on any given council.
The Alaska Constitutional Convention minutes are interesting in
that lawyers know other lawyers well and lawyers do not want an
individual on the bench they consider not to be responsive to
the law. He opined that 99-plus percent of cases before the
courts have nothing to do with issues that peak the community's
interest or are the "hot button" issues. The majority of cases
before courts are to determine the legislature's intent when it
wrote a statute that possibly does not cover a particular case.
He further explained that politics just does not enter, in any
sense into so many of the judge's decisions. He expressed hope
to continue with a system that offers a list of excellent
potential judge's to the governor. With regard to the situation
when Governor Murkowski rejected the names offered from the AJC
because the individual he anticipated appointing to the Superior
Court was not on the list, Governor Murkowski ultimately made an
appointment of an individual who is now on the Supreme Court.
There is no doubt what an excellent choice the judge was because
the system worked, he opined.
3:03:11 PM
REPRESENTATIVE MILLETT expressed her concern regarding the
Alaska Bar Association poll attorney comment section, of which
some comments are unsigned. Although she said she understood
the AJC doesn't give much weight to those, she opined the
unsigned attorney comments should carry no weight whatsoever.
Due to the fact no direction is provided within the Alaska State
Constitution regarding the AJC's process, she suggested
reviewing this issue in the AJC's regulations.
MR. CARPENETI related that within the Judicial Council By-laws,
anonymous comments are not given weight unless they are
investigated and something is found. In defense of anonymous
comments, he stated, the bar poll is regarding an individual who
could move into a powerful position and some people are not
comfortable signing their name. The question is whether
anonymous comments should be disallowed, although there is the
possibility of learning something that could be a problem with
further investigation, or not have it at all, he commented. For
example, in the event the AJC receives an anonymous comment that
an applicant for a judgeship has a serious drinking problem. If
there is any supporting evidence, it should be investigated and
especially when there is more than one anonymous comment. He
described when he was Chief Justice, the Alaska Judicial Council
Executive Director investigated such an allegation by
interviewing local citizens and specific incidents claimed on
specific dates. Ultimately, the director came to the conclusion
there was no evidence behind the allegation, notified the AJC,
and the AJC continued on. On the other hand, what if there had
been merit to the comment, he highlighted. He explained that in
the event an individual applies for judgeship, the council
thoroughly vets and delves into the individual's life by
obtaining criminal records, credit records, interviewing lawyers
on the other side of cases, and speaking with sitting judges.
While Mr. Carpeneti said he does not approve of someone writing
untrue allegations, he said he would rather have the escape
valve and investigate.
3:07:03 PM
CHAIR KELLER asked where Mr. Carpeneti is excluding judicial
philosophy from whatever definition of political he is was
using. He advised that the Alaska State Constitution states
"without regard of political affiliations," but there is a
connection between the judiciary and the citizenry of the State
of Alaska. If that were not true, there wouldn't be the effort
have a geographic representation. He opined there must be some
sort of litmus test used by the citizenry when there is a
retention vote. An individual cannot escape "political" in the
manner Chair Keller would use the term. He opined that the
Alaska Bar Association's world view or its judicial philosophy
may or may not align with that of the majority of the people of
Alaska. Therefore, he related his belief that it is completely
legitimate to put, for example, the judicial philosophy is
possibly liberal conservative as a consideration for the people
of Alaska. He further opined that the founders did not intend
to make the isolation such that the judicial branch is
completely beyond and above those kinds of judgments.
MR. CARPENETI offered that he did not disagree with Chair
Keller's comments. He explained that his concern is that in
seeking the correct balance it not be changed such that
political consideration or judicial philosophy, which is proper
at the second stage, is moved into the first stage and then
overwhelms the first stage. If the aforementioned should
happen, the idea of merit selection is lost, he opined.
3:09:44 PM
CHAIR KELLER replied that [HJR 33] is proposing to find that
line.
3:09:48 PM
REPRESENTATIVE LEDOUX related that one rationale for HJR 33 is
that the Chief Justice would not be required to vote and
possibly be accused of partisan behavior. She requested his
thoughts as former Chief Justice of the Alaska Supreme Court and
as a person on the AJC, regarding whether he believed being
accused of partisan behavior was ever a problem.
MR. CARPENETI responded that Representative LeDoux phrased the
question a bit differently than Mr. Prax, as Mr. Prax stated it
was to keep the Chief Justice out of a conflict of interest,
while Representative LeDoux stated it was not necessarily a
conflict of interest but an awkward position. He related he was
not trying to be willfully ignorant, but he just did not
understand the conflict of interest argument. Prior testimony
stated that if it is a Superior Court Judge going up for the
Court of Appeals or the Alaska Supreme Court, the Chief Justice
is put in the position of saying "yes" or "no" to the judge.
Mr. Carpeneti emphasized that is what the Chief Justice does
every day of his/her life as they review decisions of other
judges to determine if the judge ruled correctly or not, and it
is not a conflict to say "yes" or "no" to a judge. The Chief
Justice is directed by the Alaska State Constitution to send the
very best names to the governor and the constitutional phrase in
the debates was "the tallest timber." He offered that it is not
a conflict to say that while an individual is very qualified and
a good judge, the other candidates who have already made it
through are clearly in a higher group. Without violating any
confidences, that is exactly what Mr. Carpeneti said he did the
one time he voted "no."
[HJR 33 was held over.]
3:13:09 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:13 p.m.