Legislature(2021 - 2022)BUTROVICH 205
03/01/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB14 | |
| SB82 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 43 | TELECONFERENCED | |
| *+ | SB 82 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 14 | TELECONFERENCED | |
SB 14-SELECTION AND REVIEW OF JUDGES
1:55:45 PM
CHAIR REINBOLD reconvened the meeting and announced the
consideration of 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." [CSSB 14(JUD)\B] was before
the committee.
1:56:03 PM
SCOTT OGAN, Staff, Senator Mike Shower, Alaska State
Legislature, Juneau, Alaska, reviewed the three fiscal notes for
SB 14 on behalf of the sponsor.
MR. OGAN referred to Fiscal Note 1, an indeterminate fiscal note
from the Alaska Court System (Court System}, OMB [Office of
Management and Budget] component 768. He related that the ACS
expressed concern about potential delays in filling vacant
judgeships and magistrate positions. For example, if the
governor rejects the Alaska Judicial Council's (Judicial
Council) list of recommended judicial candidates. In that case,
the court will likely need to hire pro tem judges or acting
district court judges to handle the incoming and ongoing
caseload. Secondly, the ACS expressed concern that adding
ethical reviews for magistrates could result in a lack of
magistrate applicants. However, in his view, the pool would
probably increase rather than decrease.
1:58:36 PM
SENATOR HUGHES asked if potential delays in appointing judges
could be remedied by amending the bill to add a deadline. She
explained that an indeterminate fiscal note was not the same as
a zero fiscal note. Instead, it meant that the Court System
would likely incur expenses but the agency was not yet sure of
the cost.
MR. OGAN advised members that he spoke with the Legislative
Legal attorney about the possibility of giving judges the
authority to act before being confirmed. He suggested it may be
possible for the legislature to grant express authority but the
legal issues were not yet resolved. One issue that arose was if
judges worked on cases prior to confirmation, it could
jeopardize those cases.
2:00:11 PM
SENATOR SHOWER advised members that he had just received the
fiscal notes, so he was unsure how to handle the Court System's
concerns. He indicated his preference was to continue to work on
the bill in subsequent committees in the other body. He
explained that the goal was to expand the judicial applicants'
pool and assert the legislative supremacy doctrine.
2:01:26 PM
SENATOR HUGHES stated that knowing Legislative Legal has not yet
considered if an applicant could sit as a judge answers her
question. She suggested that perhaps this issue could be
addressed statutorily. She was unsure of the costs of hiring pro
tem judges. However, it appeared as though the vacancies could
be up to 18 months so it would be necessary. She offered her
view that this issue would still need to be addressed as the
bill moves through the process.
SENATOR SHOWER offered his view that determining costs that the
agencies could absorb was subjective.
2:03:00 PM
MR. OGAN reviewed Fiscal Note 2 by the Commission on Judicial
Conduct (CJC), OMB component 770, for $64,000 in FY 2022. He
said the CJC does not currently review the ethics for
magistrates. However, since magistrates serve at the pleasure of
the chief justice of the Alaska Supreme Court (ASC), if any
ethical issues arose, the Court System would handle them, he
said. According to CJC, this bill would add agency staff review
of any complaints against magistrates.
2:04:16 PM
SENATOR KIEHL recalled that magistrates were judicial officers
of the District Court, not under the jurisdiction of the Alaska
Supreme Court.
MR. OGAN said he stands corrected.
2:04:38 PM
SENATOR SHOWER offered his view that agency could absorb the
costs to implement SB 14. He said he entertains the idea of
zeroing out the fiscal notes but deferred to the will of the
committee.
CHAIR REINBOLD solicited a motion.
2:04:56 PM
SENATOR SHOWER moved to zero out the fiscal note [Fiscal Note 2]
for the Commission on Judicial Conduct (CJC), OMB component 770.
CHAIR REINBOLD objected for discussion purposes.
SENATOR KIEHL explained that Fiscal Note 2 reflects 14 percent
of the agency's current budget, which would be a considerable
amount to absorb. He said CJC explained the expansion of its
work and limited it to one part-time position under SB 14.
SENATOR SHOWER expressed his interest in discussing the fiscal
note in detail with CJC before the bill is heard in a subsequent
committee. He maintained his preference to zero out the fiscal
note. He said he was open to amendments to SB 14 to help reduce
the overall costs.
SENATOR KIEHL objected to zeroing out the fiscal note. He
suggested that the time to zero out the fiscal note should be
when changes are made to the bill to reduce the cost to CJC.
2:07:37 PM
SENATOR HUGHES recalled that the executive director initially
related that the agency could absorb the functions proposed
under the bill but later decided otherwise. She reviewed the
fiscal note narrative, which stated SB 14 might require adding a
meeting or two or increased travel expenses. However, CJC does
not currently run full-day meetings, so she questions the fiscal
note. She offered her support to zero out the fiscal note.
CHAIR REINBOLD remarked that the committee spent substantial
time deliberating on SB 14. The committee has considered
amendments to streamline the process and address concerns. She
pointed out that the state is currently in a fiscal crisis. She
offered her support for the motion.
CHAIR REINBOLD removed her objection.
2:09:11 PM
SENATOR KIEHL maintained his objection.
A roll call vote was taken. Senators Shower, Hughes, and
Reinbold voted in favor of the motion to zero out Fiscal Note 2
by the Commission on Judicial Conduct and Senator Kiehl voted
against it. Therefore, the motion to zero out the fiscal note by
the CJC passed by a 3:1 vote.
CHAIR REINBOLD stated that the motion passed by a vote of 3
yeas, 1 nay.
2:09:46 PM
MR. OGAN reviewed Fiscal Note 3, by the Alaska Judicial Council
(Judicial Council), OMB Component 771, in the amount of $78,500.
He related the Court System's concerns. First, magistrates would
increase the council's workload. Further, a possible second
round of applicants could arise for the same vacancy.
MR. OGAN argued it was doubtful that the governor would reject
his/her candidates unless the Judicial Council found issues
while conducting background reviews. He pointed out that the
Judicial Council currently reviews candidates for judicial
vacancies. According to the Judicial Council, the additional
costs would cover reviewing magistrate candidates. However, it
will still use the same process. He asked the record to reflect
that the Judicial Council was willing to absorb some costs.
2:12:10 PM
SENATOR SHOWER offered his view that the same arguments could be
made for this fiscal note as the previous one. He echoed the
sentiment that the agency was willing to absorb some costs. He
acknowledged that tension exists between the legislature and the
judicial branch. He said he was not sure if all of the work
could be absorbed by the council.
2:13:04 PM
SENATOR SHOWER moved to zero out Fiscal Note 3, by the Alaska
Judicial Council, OMB Component 771.
CHAIR REINBOLD objected for discussion purposes.
SENATOR KIEHL remarked that fiscal note 3 appears to be a modest
fiscal note. He stated that the Judicial Council found ways to
take on some additional duties with its current staff. However,
he said most of the work required under the bill would be
contract work. If additional funding is not provided, it
represents about 6 percent of the council's Unrestricted General
Fund (UGF) funding.
2:15:29 PM
CHAIR REINBOLD characterized Fiscal Note 3 as a small one to
cover travel costs of approximately $26,000 and services of
$52,000. Under the bill, the Judicial Council would screen any
candidates for magistrates and recommend nominees to the
governor. She related the fiscal note narrative estimates about
six magistrate vacancies occur each year. She said it seems like
the council could absorb these costs.
2:16:41 PM
SENATOR HUGHES echoed her appreciation that the Judicial Council
was willing to absorb some costs. She said the fiscal note
relates to contract survey services. However, the Judicial
Council already conducts surveys, she said. Since the Judicial
Council never knows how many judges and applicants it may need
to review, it is possible fewer candidates would apply, so some
council funding for judicial reviews could be used to conduct
magistrate reviews. Further, the fiscal note reflects the
Judicial Council's request for additional funds to conduct
outreach. She offered her belief that outreach occurred in the
election pamphlet, so any additional costs should not be in the
thousands of dollars. She offered her support for the motion.
2:18:50 PM
CHAIR REINBOLD removed her objection.
SENATOR KIEHL objected. He offered his view that the Judicial
Council's work on judicial retention for magistrates would be
additional work. He agreed that public outreach costs are
negligible, but costs associated with advertising, conducting
comprehensive surveys of jurors, police officers and collating
responses were not. He maintained his objection.
2:20:04 PM
A roll call vote was taken. Senators Shower, Hughes, and
Reinbold voted in favor of zeroing out Fiscal Note 3, OMB
component 771, by the Judicial Council and Senator Kiehl voted
against it. Therefore, the motion to zero out the fiscal note by
the Judicial Council passed by a vote of 3:1.
CHAIR REINBOLD announced that the motion passed by a vote of 3
yeas, 1 nay.
2:20:40 PM
SENATOR SHOWER expressed his willingness to work on SB 14,
including the fiscal notes.
2:21:52 PM
SENATOR SHOWER moved to report the committee substitute (CS) for
SB 14 [work order 32-LS0171\B] out of committee with the
attached fiscal notes.
CHAIR REINBOLD objected.
SENATOR KIEHL stated that while he appreciated the work on the
bill, it was designed to insert politics into the judicial
selection process. He offered his view that this was the wrong
direction to go. He said that Alaska has the best constitutional
provisions of all 50 states in terms of judicial selection. The
current process keeps politics out of judicial appointments. The
committee discussed the need for judges to be accountable to the
electorate and legislators. US Supreme Court Chief Justice John
Roberts said in a recent ruling that the US Constitution
entrusts the protection of the people's rights to the judiciary
"not despite judges being shielded but because they are."
SENATOR KIEHL said he has heard his constituents lament that no
judges are far-left leaning, yet public testifiers complained
that no hard-right judges were sitting on the bench. He
interpreted Chief Justice Roberts ruling as saying that judges
"call balls and strikes."
SENATOR KIEHL expressed concern that the bill would add politics
into the process, but it is essential to keep as much politics
out of the judiciary as possible. Concerns were raised that an
imbalance exists on the Judicial Council. He argued it is a
nonissue. In fact, when the attorney and non-attorney members
serving on Judicial Council were split on a decision, the chief
justice of the Alaska Supreme Court voted with the attorney
members 7 times out of 1,461 votes. Further, in 6 of those 7
cases, the governor received more than two recommended nominees.
The structural changes in the bill do not follow Alaska's
Constitution and it addresses a nonissue, he said.
SENATOR KIEHL said SB 14 will create new issues. He offered that
it would make hiring and firing magistrates more challenging.
The Judicial Council's application process is extensive and the
public vetting process is thorough and complex. Judges have
indicated that applying for a judgeship was the single most
significant impediment. The retention elections can be off-
putting to many applicants, he said. Further, SB 14's fiscal
impact is $140,000, which creates more government but obtains
worse results, he said. He remarked that the work remains to be
done even though the fiscal note is zeroed out.
SENATOR KIEHL recalled that in a previous legislature before the
Senate Judiciary Committee, Senator Micciche said, "I appreciate
the statement about us not being overly political and the people
that we confirm, but that just simply isn't the case. We did
things up from elementary school?" For example, he noted the
political nature of the Board of Fisheries appointees, among
others.
SENATOR KIEHL offered his view that SB 14 fails to fix what is
not a problem and that it would amp up the most apolitical
system in all 50 states. He maintained his objection to move the
bill.
2:28:51 PM
SENATOR HUGHES reminded members that the Alaska Constitution
establishes the process for judicial selections to Superior
Court and the Alaska Supreme Court. The framers left out the
lower courts but could have easily considered them. She argued
that it is challenging to remove politics from the system.
However, she offered her belief that this bill would lessen
politics in the judiciary because it would increase the
accountability of judges.
SENATOR HUGHES related she has often heard Alaska's judicial
selection process is one of the best in the country. However,
she has only heard some attorneys say so. Other attorneys have
privately told her that the system is rigged. She reminded
members that government is "of the people, by the people, and
for the people." She argued that this statement is not limited
to the executive and legislative branches but was also intended
to apply to the judicial branches. She heard the sponsor state
one result of SB 14 is that it will reflect the people's values.
Somehow the judicial branch is almost placed in an elite class,
yet judges fall under the same constitutional language, "of the
people, by the people, and for the people," she said. Instead of
politicizing the process, the changes in SB 14 will place a
check on politics and bring accountability to the process.
Judges serve the people in Alaska. The procedure established in
SB 14 is specifically allowable by the Alaska Constitution. She
offered her support for SB 14.
2:32:39 PM
CHAIR REINBOLD related her understanding that this bill would
change the appointment process similar to the federal process
for appointing judges. She read the definition of politics, "The
activities associated with the governance of the country and
other areas, especially in debate or conflict among individuals,
parties, or having hope to achieve power."
CHAIR REINBOLD emphasized that politics affects everything. The
courts currently can strike down bills passed by the legislature
or initiatives passed by the voters without any accountability.
She said that the legislative branch is supposed to have
legislative supremacy and be the strongest branch of government.
Currently, thousands of cases are not prosecuted in Alaska. She
expressed her interest in having additional oversight of the
courts, including legislative confirmation of judicial
candidates. She characterized the process in SB 14 as being
closer to the people. She offered her support for SB 14.
2:35:53 PM
SENATOR SHOWER disagreed with Senator Kiehl on the number of
times the Alaska Supreme Court chief justice has been the tie-
breaking vote. He said it was 19 times out of 1,000, not 7
times.
SENATOR SHOWER highlighted that the Alaska Constitution sets out
procedures for judicial selection for the Alaska Supreme Court
and Superior Court. Still, the legislature has the authority to
determine the judicial selection process for the lower courts.
He maintained his belief that the judiciary is political. For
example, the chief justice directed the Court System's liaison
to oppose this bill, he said. He surmised that some judges had
declined to testify at the hearing for this bill out of fear.
Even so, 90 percent of the public comment favored the bill. He
maintained his view that currently, the courts have limited
accountability.
SENATOR SHOWER informed members that the Legislative Finance
Division's staff indicated that the motion to move the bill
should be restated to acknowledge the forthcoming fiscal notes
[since the committee zeroed out two fiscal notes].
2:40:49 PM
SENATOR KIEHL corrected his earlier testimony. He clarified that
the chief justice of the Alaska Supreme Court voted 7 times with
the other attorneys not to forward a name to the governor and
none was forwarded.
2:41:43 PM
SENATOR HUGHES characterized SB 14 as a significant bill. She
maintained her view that this bill provides a better form of a
constitutional representative democratic republic within the
judiciary branch by allowing the people's voice to weigh in. She
pointed out that a recent stack of emails showed support for SB
14 throughout the state. She recalled that hundreds of people
had contacted her on this issue.
CHAIR REINBOLD offered her belief that the US has a
representative Republican form of government.
2:42:48 PM
At ease
2:43:48 PM
CHAIR REINBOLD reconvened the meeting.
CHAIR REINBOLD solicited a corrected motion.
[The committee treated it as though Senator Shower withdrew his
motion to move the committee substitute for SB 14, Version B,
and that Chair Reinbold removed her objection.]
2:43:57 PM
SENATOR SHOWER restated his motion. He moved to report the
committee substitute (CS) for SB 14, Version 32-LS0171\B from
committee with individual recommendations and forthcoming fiscal
notes.
SENATOR KIEHL objected.
2:44:17 PM
A roll call vote was taken. Senators Hughes, Shower, and
Reinbold voted in favor of moving the committee substitute (CS)
for SB 14, Version B, out of committee with forthcoming fiscal
notes. Senator Kiehl voted against it. Therefore, CSSB 14(JUD)
was reported from the Senate Judiciary Standing Committee by a
vote of 3 yeas, 1 nay.
CHAIR REINBOLD announced that the CSSB 14(JUD), Version B, was
reported out of committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB014CS-JUD-CJC-02-25-2021.xlsx |
SJUD 3/1/2021 1:30:00 PM |
SB 14 |
| SB014CS(JUD)-JUD-ACS-02-25-2021.pdf |
SJUD 3/1/2021 1:30:00 PM |
SB 14 |
| SB014CS(JUD)-JUD-ACS-02-25-2021.xlsx |
SJUD 3/1/2021 1:30:00 PM |
SB 14 |
| SB14CS(JUD)-JUD-AJC-02-25-2021.xlsx |
SJUD 3/1/2021 1:30:00 PM |
SB 14 |
| SB014CS(JUD)-JUD-CJC-02-25-2021.pdf |
SJUD 3/1/2021 1:30:00 PM |
SB 14 |
| SB14CS(JUD)-JUD-AJC-02-25-2021.pdf |
SJUD 3/1/2021 1:30:00 PM |
SB 14 |