Legislature(2013 - 2014)CAPITOL 120

03/05/2014 01:00 PM JUDICIARY


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01:08:20 PM Start
03:13:09 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 255 UNMANNED AIRCRAFT SYSTEMS TELECONFERENCED
Scheduled But Not Heard
*+ HJR 33 CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                                                                                                                                
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.]                                                                                                         

Document Name Date/Time Subjects
CSHB 255 (JUD) ver. P.pdf HJUD 3/5/2014 1:00:00 PM
HB 255
HB 255 Accompanying Legal Memo for Amendment O.2.pdf HJUD 3/5/2014 1:00:00 PM
HB 255
HB 255 Proposed Amendment O.2.pdf HJUD 3/5/2014 1:00:00 PM
HB 255
HJR 33 Sponsor Statement.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 ver. A.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Fiscal Note~AK Judicial Council.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Fiscal Note~Office of the Governor.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 AK Judicial Council Voting Statistics.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Document~Alaska Judicial Council Constitutional Duties.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Document~Current Judicial Council Members.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Document~Detailed Overview of Judicial Council Votes.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Document~Judicial Council Voting Statistics.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Document~Judicial Nomination Votes Over Time.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Document~Pie Chart on Judicial Council Votes.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Support Document~AK Constitution, Article IV.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Support Document~Attorney-Public Tie Votes.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Support Document~AK Judicial Council Bylaws.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Support Document~Federalist Society, Judicial Selection in State High Courts Maps.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Support Document~Historical Roster of AJC Members.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Support Document~Judicial Merit Selection Charts.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Support Document~Missouri Plan in National Perspective.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Support Document~Vote Tally Sheets of 68 AK Chief Justice Votes.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Letter of Opposition re SJR 21~David Jensen.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33~Kathleen Tomkins Miller's Letter to Legislature re AJC.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
SJR 21 AFN Letter of Opposition.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 David Jensen Written Testimony.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33
HJR 33 Letter of Opposition~Alison Arians.pdf HJUD 3/5/2014 1:00:00 PM
HJR 33