Legislature(2021 - 2022)BUTROVICH 205
02/22/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB14 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| = | SB 14 | ||
SB 14-SELECTION AND REVIEW OF JUDGES
1:34:47 PM
CHAIR REINBOLD announced that the business would be SENATE BILL
NO. 14, "An Act relating to the selection and retention of
judicial officers for the court of appeals and the district
court and of magistrates; relating to the duties of the judicial
council; relating to the duties of the Commission on Judicial
Conduct; and relating to retention or rejection of a judicial
officer."
1:35:28 PM
SENATOR SHOWER referred to a flowchart describing the current
selection process. He related that two or more attorneys are
referred to the Judicial Council, the council screens the names
and refers two or more nominees to the governor for final
selection. The governor must select one name and the remaining
names of nominees are returned to the attorney pool, he said.
SENATOR SHOWER reviewed a similar flowchart that described the
process that would be taken under Amendment 4 [not yet under
consideration by the committee]. He stated that the Judicial
Council would refer four names and the governor would refer two
names. The Judicial Council would screen all six prospective
candidates and forward up to six names to the Governor. If the
governor decided not to select a judicial nominee, the process
would start over. If the governor selects a nominee, the name
would be forwarded to the legislature for confirmation. If the
legislature did not confirm the nominee, the process would start
over, but once confirmed, the nominee would become a judge, he
said.
SENATOR SHOWER referred to a handout that described the process
for selection of federal judges, which he characterized as the
Missouri plan. He reviewed the process, stating that
recommendations are made to the President, and if accepted, the
candidates' names are forwarded to the US Senate Judiciary
Committee. The committee holds a hearing to interview the
candidate, and if the nominee is rejected, the candidate's name
is returned to the President. The President may then nominate
another candidate. If the second candidate is accepted, the name
is forwarded to the Senate for consideration during
confirmation. If confirmed, the person becomes a federal judge
and if not, the person does not become a judge.
1:38:43 PM
CHAIR REINBOLD asked him to post handouts to BASIS.
SENATOR SHOWER agreed to do so.
1:39:40 PM
SENATOR SHOWER reviewed how several other states would select
their judges. He explained that California uses two systems:
appellate judges are selected by gubernatorial appointment
followed by commission confirmation; and trial judges are
elected through a nonpartisan election. Florida appellate judges
are selected using the Missouri plan, but trial judges are
selected in nonpartisan elections. Oregon judges are selected in
nonpartisan elections, he said.
SENATOR SHOWER described the "assisted appointment" method of
judicial selection, sometimes referred to as "merit selection"
or the Missouri Plan. This process is modeled after the method
used to select federal judges, he said. Using this process, the
governor would appoint state judges with help from a commission
or board.
SENATOR SHOWER reported that six states use partisan elections,
including Alabama, Illinois, Louisiana, North Carolina,
Pennsylvania, and Texas. Five states use gubernatorial or
legislative appointments, including California, New Jersey,
Tennessee, South Carolina, and Virginia. Fifteen states use the
assisted appointment or Missouri plan.
SENATOR SHOWER said that politics is present in all judicial
systems. He referenced quotes from a study to support this. He
emphasized that the political affiliation of the Alaska Bar
Association politicizes the process, regardless of whether it is
an elected system or a non-elected merit based system. He said
that three attorney members of the Alaska Judicial Council are
selected by the [Board of Governors] of the Alaska Bar
Association. He argued for a merit-based system to give voters a
more direct voice in determining which judges will serve in the
court. He added that the judicial council meetings are not
entirely open to the public, so improved transparency was
needed.
1:44:09 PM
SENATOR SHOWER said he compiled quotes from professors in
support of the merit system or Missouri plan for selecting
judges [authors unknown][Original punctuation provided]:
It is hard to believe that lawyers who select judges
in merit systems care less about the decisional
propensities of judicial candidates than do voters or
elected officials.
As the bar is an elite segment of society, states that
give lawyers more power than their fellow citizens are
rightly described as elitist. Democratic principles
are violated, however, when members of the commission
are selected by a minority of persons, i.e., lawyers
and their area. This of course is the core of the
Missouri Plan, the merit based system. Allowing the
bar to select some of commission and then declining to
offset that bar power with confirmation by the Senate
or other popular elected body, and it is this core
that deprives the Missouri Plan of democratic
legitimacy.
As the term implies, merit selection is thought by its
supporters to result in more qualified and otherwise
better judges than electoral selection. There is just
one hitch to this. There is virtually no empirical
support for this claim. There is a large body of
social science research on state supreme courts and it
shows there is no real observable difference between
the judges chosen in merit selection states and those
chosen in other states. Judges from state A tend to
look and act almost the same as judges from states B
through Z, regardless of how they are selected or
retained. In other words, given states choice between
merit selection and partisan election does not seem to
have any discernable effect on the kind of people
chosen for the bench or their performance on it.
SENATOR SHOWER summarized what [the late] Louisiana Supreme
Court Justice Calogero stated in his final State of the
Judiciary comments. He related that the justice said that in his
experience the electorate, for the most part, has made wise and
deliberate choices for those who are elected to serve in state
judiciary. He said the justice was also concerned that replacing
an elective system with a selective or appointive only system
would remove the choice from the people and would place it in
the hands of a few. This process does not in any way remove the
politics from the process as some have argued, he said.
1:46:06 PM
SENATOR SHOWER stated that SB 14 would assert the legislature's
constitutional authority to fill the lower courts. He said it
would not upend how Alaska judges are selected as reported by
the Alaska Daily News. The Alaska Constitution outlines the
selection process for the Alaska Supreme Court justices and
Superior Court judges. SB 14 would not affect that process. He
reported that Professor Brian Fitzpatrick, Vanderbilt
University, claimed that the Missouri plan has resulted in the
nomination of more left-leaning judges. He cited campaign
contributions made to support this view. He noted that judges
were rarely voted out during elections. According to one 1998
study, only 58 percent of voters knew that judicial performance
evaluations were available. He maintained his position that the
judicial process is politicized.
1:48:56 PM
CHAIR REINBOLD said his comments provided clarity to this issue
for her. She asked him to provide his reference materials to the
committee.
1:49:44 PM
SENATOR KIEHL asked for the sponsor's sources of quotes and
studies he referenced. He argued that the legislature should not
change its system if it does not matter what process is used to
select judges since the results were about the same.
SENATOR SHOWER remarked that the court system opposed SB 14. The
court system testified that the proposed system would politicize
the system. However, he found that many other states
successfully used the merit system, also known as the Missouri
Plan. He maintained his view that the current system is not the
best approach. First, the [Board of Governors of] the Alaska Bar
Association appoint [three] members to the Judicial Council. The
Judicial Council members are not elected or confirmed by the
legislature. Second, the Judicial Council screens and nominates
judicial applicants and forwards their names to the governor.
Finally, the governor must select from the Judicial Council's
nominees.
SENATOR SHOWER said he would like more accountability in the
system. He offered his view that Alaska could do a better job.
He filed the bill to provide better transparency, give
additional voice to the people and remove control of one branch
of government vis--vis the Alaska Bar Association and Judicial
Council. Under the current system, judges are not held
accountable to the people until a retention vote is held, he
said. One prior testifier suggested that using state funds for
an unelected body to provide information to the voter might be
unconstitutional, he said.
1:54:02 PM
SENATOR KIEHL said the sponsor referenced that people tend not
to vote against retaining judges, yet many voters are unaware of
judicial evaluations. He suggested this creates tension.
1:55:07 PM
CHAIR REINBOLD advised members that Amendment 1 was rolled to
bottom of the amendments, that Amendment 2 was adopted, that
Amendment 3 was withdrawn, and the committee is currently on
Amendment 4.
1:56:26 PM
SENATOR SHOWER moved to adopt Amendment 4 [work order 32-
LS0171\A.8.]:
32-LS0171\A.8
Fisher
2/16/21
AMENDMENT 4
OFFERED IN THE SENATE BY SENATOR SHOWER
Page 5, line 8, through page 6, line 3:
Delete all material and insert:
"* Sec. 12. AS 22.07.070 is amended to read:
Sec. 22.07.070. Vacancies. (a) The governor shall
fill a vacancy or appoint a successor to fill an
impending vacancy in the office of judge of the court
of appeals [WITHIN 45 DAYS] after receiving
nominations and recommendations from the judicial
council on the person or persons submitted to the
judicial council for review under (b) of this section,
by appointing, for each actual or impending vacancy,
one person who was [OF TWO OR MORE PERSONS] nominated
by the council or who was reviewed by the council
under (b) of this section at the request of the
governor and who is qualified under AS 22.07.040. If
the governor does not appoint a person from the first
round of persons nominated or reviewed by the judicial
council under (b) of this section, the governor shall
submit the names of not more than two additional
persons to the judicial council for review under (b)
of this section and the judicial council may submit to
the governor the names of not more than four
additional persons under (b) of this section. An
appointment made under this section is subject to
confirmation by a majority of the members of the
legislature in joint session [FOR EACH ACTUAL OR
IMPENDING VACANCY]. An appointment to fill an
impending vacancy becomes effective upon the later of
either confirmation by the legislature or the actual
occurrence of the vacancy.
(b) The office of a judge of the court of
appeals becomes vacant 90 days after the election at
which the judge is rejected by a majority of those
voting on the question or for which the judge fails to
file a declaration of candidacy. Upon the occurrence
of (1) an actual vacancy; (2) the certification of
rejection following an election; [OR] (3) the election
following failure of a judge to file a declaration of
candidacy; or (4) the decision of the governor not to
appoint a person under (a) of this section, the
governor shall, within 90 days, submit to the judicial
council the names of not more than two persons
qualified for the judicial office. The [, THE]
judicial council shall meet within 90 days after
receiving the names submitted by the governor to
review the qualifications of the person or persons
proposed by the governor, provide recommendations to
the governor concerning the qualifications of those
persons for appointment to the judicial office, and
submit to the governor the names of up to four
additional [TWO OR MORE] persons qualified for the
judicial office; however, the 90-day period for the
council to meet may be extended by the judicial
council with the concurrence of the supreme court. In
the event of an impending vacancy other than by reason
of rejection or failure to file a declaration of
candidacy, the governor may submit to the judicial
council the names of not more than two persons
qualified for the judicial office, and the judicial
council, after receiving names submitted by the
governor, may meet at any time within the 90-day
period immediately preceding the effective date of the
vacancy to review the qualifications of the person or
persons proposed by the governor, provide
recommendations to the governor concerning the
qualifications of those persons for appointment to the
judicial office, and submit to the governor the names
of up to four additional [TWO OR MORE] persons
qualified for the judicial office. The judicial
council may submit to the governor the name of a
candidate for judicial office only if the judicial
council determines that the judicial candidate
understands and is committed to strict constitutional
interpretation of statutes and regulations and
adhering to legislative intent."
Page 6, line 20, through page 7, line 18:
Delete all material and insert:
"* Sec. 14. AS 22.15.170(a) is amended to read:
(a) The governor shall fill a vacancy or appoint
a successor to fill an impending vacancy in an office
of district judge or magistrate [WITHIN 45 DAYS] after
receiving nominations and recommendations from the
judicial council on the person or persons submitted to
the judicial council for review under (e) of this
section, by appointing, for each actual or impending
vacancy, one person who was [OF TWO OR MORE PERSONS]
nominated by the council or who was reviewed by the
council under (e) of this section at the request of
the governor and who is qualified under AS 22.07.040.
If the governor does not appoint a person from the
first round of persons nominated or reviewed by the
judicial council under (e) of this section, the
governor shall submit the names of not more than two
additional persons to the judicial council for review
under (e) of this section and the judicial council may
submit to the governor the names of not more than four
additional persons under (e) of this section. An
appointment made under this section is subject to
confirmation by a majority of the members of the
legislature in joint session. An [FOR EACH ACTUAL OR
IMPENDING VACANCY. THE] appointment to fill an
impending vacancy becomes effective upon the later of
either confirmation by the legislature or the actual
occurrence of the vacancy.
* Sec. 15. AS 22.15.170(e) is amended to read:
(e) The office of a district court judge or
magistrate becomes vacant 90 days after the election
at which the judge or magistrate is rejected by a
majority of those voting on the question or for which
the judge or magistrate fails to file a declaration of
candidacy. Upon the occurrence of (1) an actual
vacancy; (2) the certification of rejection following
an election; [OR] (3) the election following failure
of a judge or magistrate to file a declaration of
candidacy; or (4) the decision of the governor not to
appoint a person under (a) of this section, the
governor shall, within 90 days, submit to the judicial
council the names of not more than two persons
qualified for the judicial office or magistrate
position. The [, THE] judicial council shall meet
within 90 days after receiving the names submitted by
the governor to review the qualifications of the
person or persons proposed by the governor, provide
recommendations to the governor concerning the
qualifications of those persons for appointment to the
judicial office or magistrate position, and submit to
the governor the names of up to four additional [TWO
OR MORE] persons qualified for the judicial office or
magistrate position; except that this 90-day period
for the council to meet may be extended by the council
with the concurrence of the supreme court. In the
event of an impending vacancy other than by reason of
rejection or failure to file a declaration of
candidacy, the governor may submit to the judicial
council the names of not more than two persons
qualified for the judicial office or magistrate
position, and the council, after receiving names
submitted by the governor, may meet at any time within
the 90-day period immediately preceding the effective
date of the vacancy to review the qualifications of
the person or persons proposed by the governor,
provide recommendations to the governor concerning the
qualifications of those persons for appointment to the
judicial office or magistrate position, and submit to
the governor the names of up to four additional [TWO
OR MORE] persons qualified for the judicial office or
magistrate position. The judicial council may submit
to the governor the name of a candidate for judicial
office or for a magistrate position only if the
judicial council determines that the judicial or
magistrate candidate understands and is committed to
strict constitutional interpretation of statutes and
regulations and adhering to legislative intent."
SENATOR REINBOLD objected for discussion purposes.
1:56:50 PM
SCOTT OGAN, Staff, Senator Mike Shower, Alaska State
Legislature, Juneau, Alaska, on behalf of the sponsor, explained
that Amendment 4 would create a hybrid judicial selection
process. The Judicial Council would submit four names and the
governor would submit two names. All six applicants would be
screened by the Judicial Council and considered by the governor,
he said. The governor could decide to reject his nominees based
on the evaluations. The governor could also reject the Judicial
Council nominees. If selected, the appointee would go before the
legislature for confirmation, and if confirmed, the person would
become a judge. He remarked that Amendment 4 was written, in
part, to address Senator Hughes's concerns.
1:59:49 PM
SENATOR HUGHES said the flowcharts were helpful. She explained
her goal was to deter or eliminate cronyism, in which the
governor could submit someone whose background was unknown. The
vetting by the Judicial Council would inform the governor and
public on a judicial appointee's qualifications. She offered her
view that allowing the governor to select two attorneys to
consider for judgeships would improve the process.
2:01:11 PM
SENATOR KIEHL said it seemed odd that the governor would put
forth names without first screening and vetting them. He
recalled the vetting process used during his experience working
for a prior governor.
SENATOR HUGHES said that this would provide consistency because
the Judicial Council would use the same process to evaluate all
judicial nominees. She acknowledged that the governor would vet
applicants, but he/she may not cover the same things. She
maintained her view that double vetting would be better.
2:03:17 PM
SENATOR KIEHL related his understanding that the Judicial
Council could discover some ethical issue in its screening
process and not recommend the governor's judicial applicant. He
asked whether the governor could still appoint the person.
MR. OGAN agreed that was correct.
SENATOR HUGHES agreed the governor could still appoint the
person. The bill would require the judicial applicant to go
through the confirmation process.
2:04:30 PM
SENATOR SHOWER remarked that he sees the merits for the Judicial
Council to screen judicial applicants. He pointed out that
issues could arise with the Judicial Council's applicants.
2:05:45 PM
SENATOR KIEHL asked for further clarification on the total
number of names that could be submitted to the governor. He
related his understanding, after speaking to Legislative Lega,
that four names would be forwarded to the governor.
MR. OGAN reread Amendment 4 and agreed that it would be a total
of four names.
2:07:22 PM
SENATOR KIEHL asked when the process would end and the judgeship
would occur.
SENATOR SHOWER related that he grappled with this question, but
he discussed this with Legislative Legal and decided this has
not occurred and is not likely to happen. He surmised that long
battles with an endless loop in the judicial appointment process
would not serve anyone.
2:09:48 PM
SENATOR KIEHL agreed that the Judicial Council and governor
would not likely end up in an endless loop. He expressed concern
that problems could arise during the legislative confirmation
process, if so; it could leave a set of judgeships unfilled.
2:10:31 PM
SENATOR MYERS suggested the committee could look at two
processes. He noted that federal judicial appointees would
sometimes not be confirmed, but he was unsure that it had
happened twice in a row for the same federal judgeship.
2:12:07 PM
SENATOR HUGHES highlighted that if it seemed as though a nominee
was in trouble in the confirmation process, the governor would
likely forward another name. She agreed that it would not
probably be an endless loop.
CHAIR REINBOLD reminded members that the sponsor indicated his
willingness to consider changes to Amendment 4.
2:13:05 PM
SENATOR KIEHL said he preferred using a 90-day window instead of
45 days since the short timeframe could be difficult to meet
during the legislative session. He expressed concern that
judgeships might be held open, given that it has occurred at the
federal level.
MR. OGAN referred to an earlier question. He said the
Legislative Legal attorney confirmed that six names would be
submitted to the governor. The governor could submit two names
for judicial nominees and the Judicial Council could submit up
to four names for a total of six names.
2:14:59 PM
SENATOR HUGHES agreed that the language would allow the Judicial
Council to submit up to four names, but the council might only
submit two names. She suggested that the flowchart could read
four to six names.
2:15:29 PM
At ease
2:21:51 PM
CHAIR REINBOLD reconvened the meeting.
2:22:18 PM
SENATOR KIEHL asked for further clarification on how many names
the Judicial Council could submit to the governor.
SANDON FISHER, Attorney, Legislative Legal Services, Legislative
Affairs Agency, Juneau, Alaska, referred to the language on page
2 to AS 22.07.070(b). He referred to [Section 14] AS 22.15.170,
which relates to applicants to the court of appeals, district
court and magistrates. He explained that the governor would
submit two names, the Judicial Council would review those names
and make recommendations to the governor concerning the
qualifications of those persons. The Judicial Council could
submit up to four additional names to the governor for
consideration for a total of six names.
2:23:58 PM
SENATOR SHOWER referred to the flowchart. He related his
understanding that the governor could submit up to two names,
and the Judicial Council could submit up to four names. Thus, it
is possible the governor or the Judicial Council would submit
fewer names than allowable.
2:24:46 PM
MR. FISHER agreed that up to six attorney names could be
submitted for each vacant judicial position, with up to two
names from the governor, reviewed by the Judicial Council. He
said up to four additional names could be nominated by the
Judicial Council.
2:25:09 PM
SENATOR KIEHL referred to language in AS 22.07.070(a) and AS
22.15.170 (a) and asked why the word "additional" is used in
subsection (a) but not in subsection (b).
MR. FISHER answered that "additional" in subsection (a) refers
to instances when the governor requires a second round of
nominations if the governor does not select any of the six
names.
SENATOR KIEHL acknowledged that he had missed the language
"referred to". He said he agreed with Mr. Fisher.
2:26:32 PM
SENATOR HUGHES referred to page 1, line 13 of Amendment 4 reads
"shall." She asked if the sponsor intended to require the
governor to submit up to two additional names.
SENATOR SHOWER asked for clarification from the bill drafter.
2:27:26 PM
MR. FISHER answered that whether the governor is required to
submit names is a policy call. He said that Amendment 4 would
require the governor to submit two additional names to the
Judicial Council in the event of a second round, after the
governor rejected the initial round of applicants.
2:28:20 PM
SENATOR HUGHES asked the sponsor for his preference.
SENATOR SHOWER responded that he was agreeable to changing
"shall" to "may" to give the governor more flexibility.
2:29:54 PM
SENATOR HUGHES referred to the language on page 1, line 13. She
indicated she was leaning towards keeping the language as
"shall" rather than changing it to "may." She highlighted that
someone who represents the people would submit names of judicial
applicants and she preferred to have the governor submitting
names.
SENATOR KIEHL pointed out that zero is not more than two. He
suggested that to ensure that the governor submits any names, it
should read at least one and not more than two.
SENATOR SHOWER asked for clarification from Mr. Fisher.
2:31:45 PM
MR. FISHER agreed that zero is less than two. For example, under
Amendment 4, if the governor decided not to select a person in
the first round and initiated a second round, the governor would
be required to submit the names of not more than two persons,
which could be zero. The Judicial Council could submit to the
governor the names of not more than four persons. However,
during the second round of review the Judicial Council would not
be required to submit any names.
MR. FISHER suggested that if the committee would like to require
either party to submit names, he could help with drafting. He
characterized it as a policy decision. He commented that the
committee should make sure that if the governor decides not to
submit anyone under the first round that something triggers an
obligation in the second round for the parties to nominate
persons.
2:33:39 PM
SENATOR SHOWER indicated he was inclined to leave it as it is.
He said he found it difficult to believe that the Judicial
Council or the governor would not fulfill their duties to
recommend judicial applicants for consideration.
2:35:00 PM
SENATOR HUGHES asked if not more than two could be zero for the
governor, the converse could apply for the Judicial Council,
that not more than four could also mean zero.
MR. FISHER agreed that not more than two could be zero. The
Judicial Council's option to nominate four names is optional
throughout Amendment 4. He confirmed that Amendment 4 does not
require that anyone be nominated in the second round.
SENATOR HUGHES concluded that means that the governor could be
forced to go back to the first round to select judicial
nominees. She agreed that the sponsor may wish to require a
minimum for the second round.
2:36:25 PM
CHAIR REINBOLD solicited language for a Conceptual Amendment.
MR. FISHER responded that depending on the will of the
committee, he would suggest considering language, "at least one
but not more than two" for the governor's selection or "at least
one but not more than four" for the Judicial Council's
selection.
2:37:17 PM
SENATOR SHOWER suggested that the Judicial Council might like
the names the governor submits and could decide not to submit
any additional names or vice versa. He wondered if requiring a
minimum number of names might needlessly restrict the governor
or the Judicial Council. He added that he was not opposed to the
change.
2:39:11 PM
SENATOR KIEHL offered his view that Mr. Fisher's language would
suffice. He expressed an interest in having Senator Hughes
contemplate the structure.
2:39:23 PM
SENATOR HUGHES suggested that if the selection process went to
the second round and the screening process found issues with the
names of the governor's subsequent judicial applicants, it might
be possible for the Judicial Council to force the governor to
select someone from the first list. She expressed an interest in
avoiding recent issues that arose when the Judicial Council
forwarded names to the governor that were unpalatable. She
suggested that the language, "The governor shall submit the
names of not more than two" would give the governor the option
to not submit any names but still allow him/her to submit names
of two judicial applicants. However, she suggested limiting the
names the Judicial Council could submit to avoid the prior
issue.
2:42:18 PM
SENATOR SHOWER maintained his intent was to give the governor
more choices to avoid a stalled process. He suggested that it
might make sense to require a minimum of two names to gain a
larger pool of judicial candidates for the governor to consider.
2:42:54 PM
CHAIR REINBOLD suggested the committee consider some language
from withdrawn Amendment 3 that sets a time limit for submitting
candidate's names.
SENATOR HUGHES replied that she has discussed introducing a bill
to speak to that specific language. She asked if the sponsor of
Amendment 4 would entertain a friendly conceptual amendment. She
referred to page 1, line 15, and suggested changing "may" to
"shall" and on page 1, line 16, to insert "at least two" and not
more than four.
SENATOR SHOWER asked the bill drafter if any additional places
in the bill would need conforming changes.
2:44:31 PM
MR. FISHER pointed out a policy consideration. He explained that
that the language would require the Judicial Council to submit
two to four names to the governor for appointments. If the
governor decided not to select a name in the first round, this
language would not require the Judicial Council to submit two to
four names for consideration in the first round.
2:45:15 PM
SENATOR HUGHES asked if the proposed conceptual amendment would
mean that the Judicial Council would not need to submit any
names in the first round. She explained her intention was aimed
at the second round so the Judicial Council would be required to
submit at least two names.
MR. FISHER said that is correct. He explained the effect of the
proposed conceptual amendment on page 1, line 15, to change
"may" to "shall" and on page 1, line 16, insert "at least two"
and to make the change in the corresponding section in AS
22.15.170. This change would require the Judicial Council to
submit names in the second round, but it would not place a
requirement on the Judicial Council in the first round of
judicial selection.
2:46:15 PM
SENATOR MYERS expressed concern that the Judicial Council might
"balk" at the nominees in the second round and require the
governor to pick from the first list. He explained that this
issue would not arise in the first round because if the Judicial
Council does not submit names, it would not have any control
over the nominees. However, this issue could arise in the second
round, he said.
2:46:54 PM
CHAIR REINBOLD referred to page 1, line 9, to "[OF TWO OR MORE
PERSONS]"and on lines 11 -12 to not give the governor the option
of not appointing someone.
MR. FISHER stated that it would be a policy call whether the
committee removes the language "If the governor does not appoint
a person from the first round ?." He offered his view that
taking away language would potentially limit the nominations to
one round. Further, removing the backets on page 1, line 9, from
"[OF TWO OR MORE PERSONS]" would reinsert two or more persons
nominated by the Judicial Council. He suggested it would be
clearer to place the number of persons submitted by the Judicial
Council in the second round in lines 15 - 16 of page 1 because
that language gives instructions to the Judicial Council about
submitting additional names in the second round of selection and
qualification review.
2:48:52 PM
SENATOR HUGHES agreed with Senator Myers that the issue would
only arise with the second round since the Judicial Council
would want to submit names of qualified persons.
2:49:23 PM
SENATOR HUGHES moved to adopt a friendly Conceptual Amendment to
Amendment 4, on line 15, change "may" to "shall", and [at the
beginning of] line 16, insert "at least two and." She explained
that this would require the Judicial Council to submit at least
two names in the second round.
2:50:07 PM
CHAIR REINBOLD objected for discussion purposes.
2:50:16 PM
SENATOR KIEHL asked what happens if the governor submits two
names to the Judicial Council, but no one applies. He suggested
that changing "may" to "shall" requires the Judicial Council to
find two people.
2:51:08 PM
SENATOR HUGHES said there is an attorney pool so the Judicial
Council would merely go back to the group of applicants.
2:51:29 PM
SENATOR MYERS suggested that the committee would need a second
conceptual amendment to fix one section for vacancies. He said
it would also require revising the next section [AS 22.15.170]
on page 3 related to vacancies due to retirement or death or
retention election.
2:52:18 PM
SENATOR SHOWER asked Legislative Legal Services to weigh in.
2:52:40 PM
CHAIR REINBOLD recapped the Conceptual Amendment 1 to Amendment
4.
MR. FISHER asked members to include the ability to make
conforming changes so all the bill pieces can work together.
Conceptual Amendment 1 to Amendment 4 would require the Judicial
Council to submit two persons and not more than four additional
persons under (b) of this section. Currently subsection (b)
states that the Judicial Council may submit up to four
additional persons. In response to Senator Myers' concern that
changes would need to be made to AS 22.15.170, he indicated that
that statute would apply to district court judges and magistrate
judges. He agreed that changes would need to be made in that
section [AS 22.15.170(a)] and on page 3 to [AS 22.125.170(e)].
MR. FISHER referred to page 2, lines 1-3 to AS 22.07.070 (b) and
the corresponding section in AS 22.15 and read, "Upon the
occurrence of (1) an actual vacancy; (2) the certification or
rejection following an election; (3) the election following
failure of a judge to file a declaration of candidacy; or (4)
the decision of the governor not to appoint a person under
(a)?." He said this would fall under the 90-day window for the
governor to submit nominations to the Judicial Council and
another 90-day window for the Judicial Council to review the
names and submit up to four additional names.
MR. FISHER referred to page 3, line 13 and read, "In the event
of an impending vacancy, other than by reason of rejection or
failure to file a declaration, the governor may submit the
names, and the Judicial Council may go through its process in
the 90 days preceding the vacancy." In the event that the dates
are known, this language gives the governor and the Judicial
Council the ability to act earlier if all parties complete their
requirements, such as submitting and reviewing names and
reporting the names back to the governor. The trigger to make
this process begin for filling the vacancy [is on page 2, lines
1-2 of Amendment 4] in subsection (b). He read, "(1) an actual
vacancy; (2) the certification of rejection following an
election; [OR] (3) the election following the failure of a judge
to file a declaration of candidacy;." This language will create
the 90-day trigger at the latest following the actual vacancy of
the judicial office, he said.
2:57:11 PM
SENATOR HUGHES restated her motion to adopt a Conceptual
Amendment to Amendment 4. On page 1, line 15, change "may" to
"shall", and [at the beginning of] line 16, insert "at least two
and." She asked Legislative Legal to make any necessary
conforming changes.
CHAIR REINBOLD removed her objection. There being no further
objection, the Conceptual Amendment to Amendment 4 was adopted.
CHAIR REINBOLD removed her objection to the Conceptual Amendment
to Amendment 4. There being no further objection, Conceptual
Amendment to Amendment 4 passed.
2:58:04 PM
CHAIR REINBOLD removed her objection to Amendment 4, as amended.
2:48:22 PM
SENATOR KIEHL objected.
2:58:25 PM
A roll call vote was taken. Senators Shower, Hughes, Myers, and
Reinbold voted in favor of Amendment 4, as amended, and Senator
Kiehl voted against it. Therefore, Amendment 4, as amended,
passed by a 4:1 vote.
CHAIR REINBOLD announced that Amendment 4, [as amended], was
adopted by a vote of 4 yeas, 1 nay.
2:58:54 PM
SENATOR MYERS withdrew Amendment 1.
2:59:12 PM
CHAIR REINBOLD indicated her intent to hold the bill in
committee, awaiting the committee substitute and amended fiscal
notes.
2:59:35 PM
SENATOR HUGHES asked the flowchart diagrams to be updated to
reflect the new process and title.
[SB 14 was held in committee].
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 14 Amended Flowchart.pdf |
SJUD 2/22/2021 1:30:00 PM |
SB 14 |
| SB 14 Current Process Flowchart.pdf |
SJUD 2/22/2021 1:30:00 PM |
SB 14 |
| SB 14 Selection of Federal Judges.pdf |
SJUD 2/22/2021 1:30:00 PM |
SB 14 |