Legislature(1995 - 1996)

03/21/1996 09:20 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
  CS FOR HOUSE JOINT RESOLUTION NO. 5(FIN) am                                  
       Proposing amendments  to the  Constitution of  the                      
       State of Alaska relating to terms of legislators.                       
  Co-chairman  Halford  directed  that  CSHJR  5 (Fin)  am  be                 
  brought on for discussion.   He then referenced SCS  CSHJR 5                 
  (Jud)  and  a  proposed  amendment  by Senate  Judiciary  to                 
  correct an overreach relating to magistrates.                                
  CHRIS  CHRISTENSEN, General  Counsel,  Alaska Court  System,                 
  came before committee.   He explained that the supreme court                 
  has taken no  position on sections applying  to non-judicial                 
  officers.  However,  it opposes  sections that would  create                 
  fifteen-year  term  limits   for  judges  and   magistrates.                 
  Alaska's system  of  judicial appointment  and retention  is                 
  considered a  model and  has been  adopted by  other states.                 
  The system will  not be  improved by the  proposed bill  but                 
  will, instead, be severely compromised.   Judicial office is                 
  fundamentally  different than  political  office.   Alaska's                 
  constitution  recognizes  that  difference.    Justices  and                 
  judges are appointed by the  Governor rather than elected by                 
  voters.  After assuming office,  they do not face  contested                 
  election.  They stand for retention on a vote by the public.                 
  Magistrates  are  not  constitutional  officers.    They are                 
  merely  employees  of the  court  system  who serve  at  the                 
  pleasure of the presiding judge.                                             
  Mr.  Christensen  noted  that  supporters  of  the  original                 
  version of HJR 5 made several  arguments in support of their                 
  views.   He then said that  none of the arguments  "have any                 
  applicability, whatsoever, to  the judiciary."  While  it is                 
  argued  that  public  opinion polls  show  support  for term                 
  limits,  most  polling  data  relates   to  Congress.    Mr.                 
  Christensen  said  he had  seen  none that  relates  to term                 
  limits  for  judicial  officers.    No such  initiatives  or                 
  statutes have  been passed  elsewhere in the  nation in  the                 
  last few years.  Mr. Christensen further advised,                            
       Second, it's argued that term limits will bring in                      
       people with new  ideas.  Mr.  Chairman, I think  I                      
       don't have to tell you,  judges aren't supposed to                      
       have ideas, new or otherwise.  Judges are supposed                      
       to take your laws and apply them to individuals.                        
  The third  argument is  that term limits  level the  playing                 
  field for challengers.  There are no challengers in judicial                 
  retention elections.   The voting public has  an opportunity                 
  to approve or disapprove  the action of each judge.   Judges                 
  have been rejected by the voters in the past.  The retention                 
  election is the appropriate form of judicial term limit.                     
  Mr.  Christensen  stressed  that  the  practical  effect  of                 
  imposing a  fifteen-year term limit  on judges  would be  to                 
  deter  "anyone under  the age  of 45 from  applying to  be a                 
  judge."  Those under that age  would be forced to leave  the                 
  bench before  retirement age  and begin  a second  career at                 
  that time.  The  term limitation would also have  a negative                 
  impact  on  the retirement  system.   Most  judges presently                 
  serve  longer  than  fifteen  years  before retiring.    The                 
  actuarial basis  of the  judicial retirement system  assumes                 
  that  judges  will  continue to  make  contributions  to the                 
  system after  they have  fully vested.   If  all judges  are                 
  required  to  retire   at  fifteen  years,  there   will  be                 
  substantially more judges drawing retirement  pay at any one                 
  time,  and  the  state  will   be  forced  to  increase  its                 
  contributions to the retirement system.                                      
  As   evidence  of  further   negative  fiscal   impact,  Mr.                 
  Christensen noted  that court  system fiscal  notes for  new                 
  criminal law do not reflect the cost of a sitting judge  but                 
  use of  a recently retired  judge on a  pro-tem appointment.                 
  Because such judges  draw retirement  pay, the court  system                 
  pays only the difference between their retirement and what a                 
  sitting  judge receives.   Legislation  is  thus implemented                 
  based on a cost of approximately  fifty cents on the dollar.                 
   Under the proposed  bill, judges  would be prohibited  from                 
  serving for  three years after retirement.  The court system                 
  will thus have difficulty getting pro-tem judges.  That will                 
  substantially slow the  process, and  the court system  will                 
  probably have to pay more to obtain judicial services.                       
  In his closing remarks, Mr. Christensen stressed the supreme                 
  court's belief that the state judicial system will work best                 
  if members "come from the  widest possible demographic pool,                 
  and if the  voters are  allowed to decide  which judges  are                 
  doing a good job and deserve to be retained."                                
  Co-chairman Frank inquired concerning changes made in Senate                 
  Judiciary.   Mr.  Christensen explained  that the  Judiciary                 
  version adds municipal  officers to term limits.   The House                 
  resolution bill applies only to the legislature.                             
  REPRESENTATIVE THERRIAULT,  sponsor of the  resolution, next                 
  came before committee.  He explained that the House  version                 
  required  an  individual   to  "sit   out  for  two,   full,                 
  consecutive  terms."    Changes  in  Senate Judiciary  would                 
  require  a  former legislator  to  "sit out  for  four years                 
  unless you were appointed to fill somebody's seat,"  if they                 
  left office.                                                                 
  Senator  Randy Phillips  inquired  concerning the  rationale                 
  behind the  resolution.  Representative Therriault  spoke to                 
  the  "power  of   incumbency"  that  is  not   available  to                 
  challengers.   He voiced his  belief that, "after  a certain                 
  amount of time, you should break that incumbency."                           
  Senator  Phillips remarked  that  cumulative averages  since                 
  statehood indicate that  "every two years 35 percent  of the                 
  Senate is gone, and every two years 45 percent" of the House                 
  is gone.  He suggested that being an incumbent puts one in a                 
  negative  rather  than  positive position.    Representative                 
  Therriault  acknowledged  a healthy  turnover  in the  state                 
  legislature.  He explained  that the bill is aimed  at those                 
  in  office  for 25  to 30  years.   Senator  Phillips raised                 
  concern that the resolution  would deny voters the  right to                 
  vote for whomever  they wish.   He stressed that voters  can                 
  rid themselves of legislators  they do not want.   They have                 
  utilized that opportunity  numerous times.  The facts do not                 
  support  the theory  behind the resolution.   Representative                 
  Therriault   pointed  to   prohibitions  denying   both  the                 
  President  and  Alaska's  Governor  third  terms.    Senator                 
  Phillips  noted  that much  power  is concentrated  in those                 
  positions  while  it  is  shared among  60  members  of  the                 
  Co-chairman Halford told  members that the  National Council                 
  on State Legislatures  views Alaska's legislature as  one of                 
  the  weakest in the  country, in terms of  power held by the                 
  Governor.   He  added that while he generally  supports term                 
  limits, there  is need for institutional  legislative memory                 
  in  the  balance  of  power   between  the  legislative  and                 
  executive branches.  He further observed that things done in                 
  response to public interest have weakened the legislature in                 
  several areas.   Nothing  since statehood  has weakened  the                 
  Governor.  Questions are thus  raised concerning the balance                 
  of  power.  Representative  Therriault acknowledged need for                 
  an adequate learning curve for legislative proficiency.                      
  END:      SFC-96, #45, Side 2                                                
  BEGIN:    SFC-96, #46, Side 1                                                
  Senator Donley concurred in comments by Co-chairman Halford,                 
  advising of the following limitations on the legislature:                    
       1.   120-day session                                                    
       2.   stringent ethics law applied to the legislature                    
                 while  the  executive  branch operates  under                 
                 much less burdensome law                                      
       3.   requirement for  a three-quarter vote  on override                 
  of the Governor's veto on appropriation items.                               
  Alaska   is   the  only   state   where  the   Governor  has                 
  reapportionment  power.   Further,  few  states provide  the                 
  line-item veto power enjoyed by Alaska's Governor.  The need                 
  for centralized  power  has lessened  rather than  increased                 
  since statehood, yet the power of centralized government has                 
  increased over that period of  time.  Philosophically, "it's                 
  gone the opposite  of what  it should have  gone."   Senator                 
  Donley said he  could support  the resolution if  provisions                 
  are packaged with  other reforms  such as legislative  power                 
  over state-created public corporations.                                      
  Senator Rieger concurred  in need to  maintain a balance  of                 
  power.    He  expressed  additional  concern  over   placing                 
  multiple proposals before the voters that "make it look more                 
  and more like  a constitutional convention."   He questioned                 
  the kind of precedent that would set.                                        
  Co-chairman  Halford noted that  the upcoming election would                 
  provide a test  for voters  confronted with complex,  multi-                 
  page  initiatives dealing  with  topics that  are  generally                 
  supported.    He attested to the  time required to read full                 
  ballot provisions  and  suggested  that  voters  may  reject                 
  "things that they would otherwise  like, because they're too                 
  complex  and presented  with  too  many  facets."   The  Co-                 
  chairman specifically cited issues relating to both fish and                 
  game and campaign reform.                                                    
  Representative Therriault voiced his  belief that the Senate                 
  Judiciary  version  confuses   the  issue  and   asked  that                 
  committee deliberations revert to the House resolution.  Co-                 
  chairman Halford  concurred in regard to Judiciary inclusion                 
  of magistrates.  He said  that magistrates would be  removed                 
  from   the   resolution   since   they  were   inadvertently                 
  Comments followed by Co-chairmen Frank and Halford regarding                 
  the regulatory powers of the executive branch.                               
  In   response   to   a   question   from  Senator   Zharoff,                 
  Representative Therriault advised that the House  resolution                 
  speaks specifically  to House  and Senate  legislators.   It                 
  does not include municipal officials.                                        
  Further brief discussion  followed regarding voter rejection                 
  of judges.  Senator  Rieger voiced concern that  mandating a                 
  greater degree of  turnover in  the judiciary further  tilts                 
  the balance of  power toward the executive branch  since the                 
  Governor has the power to appoint judges.  Co-chairman Frank                 
  concurred  and   indicated  a   preference  for   the  House                 
  resolution.    He  remarked  that  judicial retention  is  a                 
  separate issue.   Senator Donley suggested that  requirement                 
  of a  super majority (60 to  65 percent) for retention  of a                 
  judge might be a better  approach.  Additional discussion of                 
  an  elected   judiciary  followed.     Co-chairman   Halford                 
  concurred that the balance of power question was  made worse                 
  by inclusion of the judiciary within the resolution.                         
  Senator  Zharoff   suggested   that  term   limits  on   the                 
  legislature should do away with the prohibition of having to                 
  wait   a  year   prior   to  pursuing   certain   employment                 
  Further  discussion  of  the balance  of  power  between the                 
  legislature and  executive branch  followed.   As a  counter                 
  argument  to  need  for  institutional  memory   within  the                 
  legislature,  Co-chairman  Frank  cited   the  institutional                 
  tendency toward  the status  quo that  occurs the  longer an                 
  individual serves.  He noted  that freshmen legislators "are                 
  willing to come in and change things more aggressively  than                 
  are those that have been here for twelve years plus . . . ."                 
  The  viewpoint of  those who  know they  will serve  limited                 
  terms may be valuable to the process.                                        
  Co-chairman  Halford voiced  his  belief that  the  greatest                 
  abuse  of   legislative  incumbency   in  other   states  is                 
  leadership  incumbency.    Alaska  has  a tradition  of  not                 
  repeating presiding officers.  Abuses occur when individuals                 
  retain the position  of senate president  or speaker of  the                 
  house for twenty years.                                                      
  Co-chairman  Halford  directed  that  the  bill be  held  in                 
  committee and noted consensus to "go  back to the House bill                 
  as a starting point and work from there."                                    
  The meeting was adjourned at approximately 11:15 a.m.                        

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