Legislature(2013 - 2014)BELTZ 105 (TSBldg)
02/21/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB110 | |
| SB66 | |
| SJR21 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 66 | TELECONFERENCED | |
| *+ | SB 136 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 110 | ||
| = | SJR 21 | ||
SJR 21-CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
2:05:13 PM
CHAIR COGHILL announced the consideration of SJR 21. "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." He noted this was the third hearing and there
was a work draft committee substitute (CS).
2:05:57 PM
SENATOR DYSON moved to adopt the work draft CS for SJR 21,
labeled 28-LS1364\N, as the working document.
CHAIR COGHILL objected for an explanation of the changes.
2:06:23 PM
JORDAN SHILLING, Aide, Senate Judiciary Committee, explained
that Version N keeps the number of attorney members at three and
raises the number of non-attorney members to six. The other
changes are in Section 2; these make the transitional aspects
conform to the change in seats.
CHAIR COGHILL noted the language now says a majority of the
members participating in a vote.
CHAIR COGHILL removed his objection and Version N was adopted.
SENATOR OLSON asked if the sponsor agrees with the changes.
MR. SHILLING affirmed that he did agree.
2:08:45 PM
NANCY MEADE, General Counsel, Administrative Staff, Alaska Court
System, Anchorage, Alaska, reminded the committee that the Court
System rarely takes a position on legislation, and only opposes
a bill that would directly impact a core function of the Court
System or Judicial Branch. SJR 21 is one of those bills, which
is why she is speaking in opposition to the resolution. She
assured the committee that the Court doesn't take this step
lightly, and that this is done only at the direction of the
Alaska Supreme Court.
MS. MEADE explained that the Judicial Branch is made up of three
entities: the Court System ("Court"), the Judicial Council
("Council"), and the Commission on Judicial Conduct. The Court
System and the Council have separate authority, separate
offices, separate employees, and separate administrators, but
the Court System does depend on the work that the Council does.
The Council screens judicial applicants for judgeships, which
helps the Court keep top-notch judges and maintain the public
trust and confidence in all the work the Court does. It is
because of this interdependence that the Court is testifying on
a resolution that affects the Judicial Council, she said.
MS. MEADE said that SJR 21 has the potential to significantly
change the judicial screening and selection process even though
it's been an effective process for over 50 years. Alaska has a
merit selection process, which is considered the gold standard
in judicial selection if the goal is to have fair, impartial
judges hearing and deciding disputes. She explained that merit
selection means that judicial applicants are screened and chosen
based on their legal knowledge; their skills like writing,
organizing, and creating cogent arguments; their ability to
identify flaws and nuances in people's arguments or reasoning;
their judicial temperament; and their experience in public and
private sector jobs. Because of the Council's focus on merit,
the applicants that are most qualified to be a judge are
forwarded to the governor for selection. The current makeup of
the Council works; there have been no problems with judges that
are involved in scandals or case decisions that are marked by
corruption, she said.
SJR 25 would unsettle the carefully considered balance between
the non-attorney members who bring the general public's
perspective on what to look for in a judicial candidate, and the
attorney members who bring the lawyer's perspective on what to
look for in a judicial candidate. It's the even balance that
makes the Council work so well, Ms. Meade said.
MS. MEADE said she realizes that the CS changes the number of
public members to six and maintains the three attorney members,
but the Court's perspective is that this still is not a balance.
Rather, the Court would like the Council to have the same number
of attorney members as public members. The attorneys have a role
in the discussion because they have direct experience with the
applicant as another lawyer. They know about the applicant's
legal knowledge, their writing skills, how they comport
themselves in litigation, their integrity, and whether they have
the respect of their peers. These are the things that attorneys
who have worked with the attorney applicant have direct
information about when they're having a discussion about an
applicant. The public members bring an equally valid
perspective. They know whether the person can connect with
people, their character, how they relate to non-attorneys, and
whether they can keep the public's respect. Both roles are
important in the job of screening judicial applicants.
The current even balance that is set in the Alaska Constitution
means that the discussion and decisions are focused on the
merits and qualifications of the judicial applicants. Neither
group can ignore the other's views because there has to be
consensus among four members in order to have action. These
groups have to work together, and they nearly always do through
consensus, she said.
2:15:08 PM
MS. MEADE directed attention to a document in the packets and
highlighted some of the facts about the votes over the 29 years
from 1984 through 2013.
Total votes taken on judicial applicants 1,136
Number of votes that were unanimous: 704/1,136 or 62%
Number that were unanimous or "unanimous 920/1,136 or 81%
except for 1" vote:
Number in which the Chief Justice voted, 68/1,136 or 6%
usually because of 3:3 tie
Number in which CJ voted to send the 51/68 or 75%
name to the Governor for consideration:
Number in which the vote was tied, with the 15/1,136 1.3%
attorneys and non-attorneys split:
Number of those splits in which the CJ 7/15 or 46 %
voted to send the name to the Governor
for consideration:
Number of those splits in which the CJ 10/15 or 75% of
voted with the attorneys, not with the splits
public members: 10/1,136 or .8%
of total
Number in which the vote was tied, with 8/1,136 .7% of
attorneys and non-attorneys split, and CJ's total
vote was with the attorneys not to send the
name to the Governor for consideration:
MS. MEADE highlighted some of the facts about the votes over the
four years from 2010 through 2013.
Total votes taken on judicial applicants: 201
Number of votes that were unanimous 110/201 or 55%
Number that were unanimous or "unanimous 151/201 or 75%
except for 1" vote:
Number in which the Chief Justice voted, 9/201 or 4.5%
usually because of a 3:3 tie:
Number of those in which CJ voted to send 4/9 or 44%
the name to the Governor for
consideration:
Number in which the vote was tied, with the 7/201 or 3.5%
attorneys and non-attorneys split:
Number of those splits in which the CJ 2/7 or 28.5%
voted to send the name to the Governor
for consideration:
Number of those splits in which the CJ 6/7 or 86% of
voted with the attorneys, not with the splits
public members: 6/201 or 3% of
total
Number in which the vote was tied, with 5/201 2.4% of
attorneys and non-attorneys split, and CJ's total
vote was with the attorneys not to send the
name to the Governor for consideration:
MS. MEADE said that last statistic is probably what the sponsor
last week was referring to as a trend, but she would suggest
that those five individuals whose names weren't forwarded to the
Governor were probably considered not to be qualified for the
position for which they applied. She also noted that two of
those applications were from the same individual and two
different Chief Justices voted not to forward that applicant's
name. But with such a small number, it's difficult to think that
this should be addressed with something as dramatic as a
constitutional amendment, she said.
2:21:20 PM
The data for the four years from 2006 through 2009 is similar
and while it does show a slight bump in the last several years,
the numbers are so small that it's hard to conclude that there
is a problem that needs to be addressed. There's a lot of data
but the facts don't provide evidence that something needs to be
done. The [sponsor's] conclusion that the attorneys and non-
attorneys are cliques or factions in most of their votes isn't
borne out by the statistics that show that just 15 times over
the last 29 years were the groups split 3:3.
MS. MEADE addressed the statements last week that people don't
know much about what happens with judicial selections and the
Judicial Council, and that when a process is mysterious people
tend to assume the worst. She relayed that both the Court System
and the Judicial Council have become more aware of this over the
years and the judicial branch is making a concerted effort to do
more outreach such as Supreme Court Live to help people
understand more about what goes on. The hope is that more
education and understanding will diminish the mystery.
MS. MEADE concluded her comments by stressing that the even
balance has worked well, is important to the Court System, and
maintains the merit selection of judges.
2:24:45 PM
SENATOR DYSON offered his view that just because there haven't
been more split decisions doesn't get to the heart of the
problem. He asked if she would agree that almost no one has been
appointed who hasn't had courtroom experience.
MS. MEADE replied it's fair to say that people who are appointed
to a judgeship have at least appeared in court as a lawyer.
SENATOR DYSON responded that his point was that the lawyers on
the Judicial Council would have little experience, if any, with
an attorney general who didn't have any courtroom experience. He
continued to say that people on his end of the political
spectrum worry about attorneys on the Judicial Council who might
believe that the Constitution needs judicial help to get updated
as opposed to the strict constructionist view that it should be
done through the rigorous process of amending the Constitution.
He said he also worries about laypeople being overwhelmed by
those with expertise to the point that it's not possible to
compete on a level field. He said he didn't buy the
presupposition that three and three puts Council members on the
same level; the other consideration is valid to think about.
MS. MEADE responded that she's heard that all the public members
on the Council have felt free to express their opinions.
Speaking to the balance, she stressed the importance of having
to get buy-in from someone on the other side so that one group's
views aren't closed off.
SENATOR DYSON pointed out that the attorneys that are in
practice and often in court already know the attorneys that are
liable to get nominated, whereas the public members are ill
equipped to have that same sort of information. It's a
legitimate concern, he said.
MS. MEADE clarified that all the members receive voluminous
materials on every applicant and do an in-person interview with
each applicant. She disagreed that the public members would view
themselves as handicapped in terms of receiving information
about applicants.
2:30:56 PM
CHAIR COGHILL expressed hope that she wouldn't think that public
members would be less thorough or fair than barred members.
MS. MEADE replied the Court is concerned about imbalance. If one
group had a majority and didn't need to listen to the concerns
and thoughts of the other group it would have the potential to
be unfair.
CHAIR COGHILL offered his perspective that giving public members
a little more say could bring a more vibrant discussion. He then
asked about the ethical obligation of officers of the court in
this area.
MS. MEADE replied officers of the court have an obligation in
all their dealings to maintain a sense of integrity, honesty,
and fairness. With respect to this process, that means that the
attorneys are obligated to be honest in their votes based on the
true qualifications of an applicant.
CHAIR COGHILL offered his perspective that as an outsider there
appears to be collegial peer pressure. He added that he's heard
it used that way at least four times in this committee and he
believes that's outside the ethical bounds.
MS. MEADE clarified that the three attorney members are not
judges, they can't work for the state, everyone they screen is
an attorney, and the majority of the applicants are rejected as
not the most qualified. She said it isn't the case that the
lawyers vote to put up only the names of other lawyers because
everyone who applies is a lawyer. They simply talk about the
individual lawyer applicants with the private members so the
professional courtesy argument doesn't enter.
2:35:45 PM
CHAIR COGHILL indicated he would ask the Council if there are
protections for an attorney member who talks to a judicial
applicant and then has to practice in front of that judge.
MS. MEADE said the Chief Justice has voted 15 times in the
circumstance of a tie vote, but often and in recent years the
majority of the votes were to say "no" on other sitting judges.
It's not the case where the Chief Justice feels pressure to put
the names of another judge forward to the Governor. The data
shows that it happens the other way.
CHAIR COGHILL said he's hopes she wasn't saying that the public
members would be particularly susceptible to scandal whereas the
barred members would not.
MS. MEADE said she was trying to say that sitting judges are by
and large scandal free which is an indication that the system
has been working fairly well.
2:38:42 PM
BILL GORDON, representing himself, Fairbanks, Alaska, urged
caution in putting forward an amendment to the Alaska
Constitution when the current system is working well. He said
Alaska enjoys the best judiciary in the nation and the
reputation is well deserved. He provided his background that
included a six-year term as a non-attorney member of the
Judicial Council, and the current Governor's appointee as a non-
attorney member of the Alaska Bar Association, which is the body
that selects the attorney members to the Judicial Council. From
this broad perspective on the selection of judges in the state,
he encouraged the legislature not to take lightly the process
that is working very well today.
He submitted that the process that the Judicial Council uses
encourages input and allows the public many opportunities to
affect the nomination of judicial applicants. He described the
Judicial Council as the de facto human resources department for
the judiciary that follows a strict public process in reviewing
applicants. He stressed that the Council members dedicate
incredible amounts of time to accomplish this task.
MR. GORDON said the characterization of the deliberations of the
Council as a dance between weighing the interests of the non-
attorney members against those of the bar couldn't be farther
from the truth. His experience is that the six attorney members
he served with were Alaskans first. They are also members of the
public and happen to have valuable legal experience. Any
aspersion that they were there to promote their professional
gain was nonsense, and not to have them equally represented on
the Council would be shortsighted, he said.
The Council records will show that the attorney members and non-
attorney members vote very similarly, and this is particularly
true on the "yes" votes to pass a name on to the governor, he
said. On the rare occasion when there is a division, it's
probably on a vote regarding candidates that don't quite qualify
as the best of the panel.
MR. GORDON observed that increasing the membership on the
Council by 50 percent, as the CS proposes, would make a
difficult process much more cumbersome and may even lead to a
drop in the quality and quantity of applicants. It certainly
would increase the costs. He suggested the committee consider
changing the makeup to two attorneys and four public members if,
in fact, the purpose is to give non-attorney members leverage
equal to twice the voice of their attorney counterparts. At
least the process wouldn't be affected and the costs wouldn't
increase, he said.
MR. GORDON concluded that in his 40 years of experience with the
judicial selection process, he was confident that the system was
not in need of changes. Any change should be supported by facts
and offer a clear and defined purpose. Any proposal advocating
additional costs and inefficiency should clearly define a
problem severely in need of fix. SJR 21 does not meet these
standards and should not pass from committee.
2:50:19 PM
CHAIR COGHILL thanked Mr. Gordon for his service.
2:51:11 PM
DAVID LANDRY, representing himself, Anchorage, Alaska, testified
in opposition to SJR 21. He described the legislation as a
solution in search of a problem. The concerns expressed by the
sponsor don't rise to the level of needing a constitutional
amendment, he said. The statistics indicate that that the system
is working well. He urged the committee to hold SJR 21 in
committee.
2:53:09 PM
JAMES CANNON, representing himself, Fairbanks, Alaska, said he
was a licensed attorney who served for six years on the Judicial
Council and he believes the system works very well. He described
the composition as having a bit of genius, and urged the
committee to read the minutes from the Constitutional Convention
about why the Council was made up this way. The purpose was to
get to the Governor the best candidates. The founders of the
constitution understood that the governor was one of two people
elected by the whole people of the state of Alaska. If politics
were important, the governor had a limited means of imposing
that through the people that he/she nominated to the Judicial
Council. "This amendment would throw that out of whack," he
said.
MR. CANNON said he served on the Council with three Chief
Justices and, in his experience, they usually voted with the
public members. He urged the committee to hold SCR 21 in
committee.
DEBORAH O'REGAN, Executive Director, Alaska Bar Association,
noted that she submitted written testimony about the process.
CHAIR COGHILL said he would distribute it to committee members.
2:59:50 PM
CHAIR COGHILL announced he would hold SJR 21 in committee for
further consideration.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB66 Letter of Support - Peace Officers.pdf |
SJUD 2/21/2014 1:30:00 PM |
SB 66 |
| SB 66 Sponsor Statement.pdf |
SJUD 2/21/2014 1:30:00 PM |
SB 66 |
| SB66 Legal Services Memo.pdf |
SJUD 2/21/2014 1:30:00 PM |
SB 66 |
| SJR 21 AJC. BYLAWS.pdf |
SJUD 2/21/2014 1:30:00 PM |
SJR 21 |
| SJR 21 - Judicial Selection Map.pdf |
SJUD 2/21/2014 1:30:00 PM |
SJR 21 |
| Letter of Support - CBJ.PDF |
SJUD 2/21/2014 1:30:00 PM |
SB 66 |
| Letter of Support - Kathleen Miller.pdf |
SJUD 2/21/2014 1:30:00 PM |
SJR 21 |
| TESTIMONY OF DAVID JENSEN.pdf |
SJUD 2/21/2014 1:30:00 PM |
SJR 21 |
| SJR 21 - AFN Letter.pdf |
SJUD 2/21/2014 1:30:00 PM |
SJR 21 |