Legislature(2013 - 2014)BUTROVICH 205

04/12/2013 09:00 AM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 51 EXTEND BAR ASS'N BOARD OF GOVERNORS TELECONFERENCED
Scheduled But Not Heard
-- Public Testimony --
+= HB 63 EXTEND BAR ASS'N BOARD OF GOVERNORS TELECONFERENCED
Moved CSHB 63(FIN) Out of Committee
-- Public Testimony --
+= SCR 3 JOINT COMMITTEE ON FEDERAL OVERREACH TELECONFERENCED
Moved CSSCR 3(JUD) Out of Committee
-- Public Testimony --
+ HB 57 ENTITY TRANSACTIONS ACT TELECONFERENCED
Moved CSHB 57(JUD) Out of Committee
-- Public Testimony --
           HB  63-EXTEND BAR ASS'N BOARD OF GOVERNORS                                                                       
                                                                                                                              
CHAIR  COGHILL announced  the  consideration of  HB  63. "An  Act                                                               
relating  to   the  Board   of  Governors   of  the   Alaska  Bar                                                               
Association; and providing for an  effective date." [CSHB 63(FIN)                                                               
was before the committee.]                                                                                                      
                                                                                                                                
9:19:46 AM                                                                                                                    
CECILE ELLIOTT  Staff, Representative Mike Hawker,  sponsor of HB                                                               
63, explained that  the bill would extend the  Board of Governors                                                               
of  the Alaska  Bar Association  (ABA)  until June  30, 2021,  as                                                               
recommended  by the  legislative auditor.  The agency  found that                                                               
the board  protects the public  interest by ensuring  that people                                                               
licensed to practice law are  qualified. She continued to explain                                                               
that Section  2 contains conforming  language to clarify  that at                                                               
large  members  are  elected  in  the same  way  as  other  board                                                               
members. Section  3 requires that  members of board  complete the                                                               
voluntary continuing legal education (CLE)  credits as set out in                                                               
the  Alaska  Bar  Rules.  She  noted  that  the  House  Judiciary                                                               
Committee prepared a letter of  intent to support continued CLEs.                                                               
She  highlighted   the  one  continuing  recommendation   of  the                                                               
legislative  auditor was  to increase  the  CLE requirements  for                                                               
attorneys.                                                                                                                      
                                                                                                                                
9:21:37 AM                                                                                                                    
SENATOR MCGUIRE asked  Ms. Elliott if the  Legislative Budget and                                                               
Audit report made any other recommendations.                                                                                    
                                                                                                                                
MS. ELLIOTT replied  that the one recommendation  was to increase                                                               
CLEs.                                                                                                                           
                                                                                                                                
CHAIR COGHILL commented that the  report also recommended the new                                                               
June 30, 2021 termination date.                                                                                                 
                                                                                                                                
9:22:26 AM                                                                                                                    
SENATOR  WIELECHOWSKI  asked if  the  sponsor  had addressed  the                                                               
4/9/13 legal  opinion from Legislative  Legal Services  that says                                                               
the  legislature  cannot  statutorily  set a  certain  number  of                                                               
continuing  CLE hours  for attorney  licensure  because it  would                                                               
violate the separation of powers doctrine.                                                                                      
                                                                                                                                
MS. ELLIOTT said no.                                                                                                            
                                                                                                                                
CHAIR COGHILL suggested  that Steve Van Goor could  help with the                                                               
question.                                                                                                                       
                                                                                                                                
9:23:10 AM                                                                                                                    
SENATOR OLSON joined the committee.                                                                                             
                                                                                                                                
9:23:22 AM                                                                                                                    
STEVE VAN  GOOR, Bar Counsel,  Alaska Bar  Association, confirmed                                                               
that the  court has the  ability to set  the number of  CLE hours                                                               
that  lawyers  licensed  in  Alaska  are  required  to  meet.  He                                                               
continued  to say  that  while a  separation  of powers  argument                                                               
could be  made, the ABA understands  the purpose of Section  3 is                                                               
for attorney  members of  the board  to set  a good  example with                                                               
regard to CLEs.                                                                                                                 
                                                                                                                                
SENATOR WIELECHOWSKI  agreed that  the Board of  Governors should                                                               
set  an example,  but questioned  whether  the requirement  would                                                               
violate the Alaska Constitution.                                                                                                
                                                                                                                                
MR. VAN GOOR agreed that the  court adopts rules of procedure and                                                               
substantive  rules of  conduct under  its  inherent authority  in                                                               
Section 4.1  of the Alaska  Constitution. He acknowledged  that a                                                               
separation  of  powers argument  could  be  made, but  given  the                                                               
intent of Section 3 it didn't seem worth the fight.                                                                             
                                                                                                                                
SENATOR WIELECHOWSKI observed  that it's a question  of whether a                                                               
violation of the Alaska Constitution is worth fighting.                                                                         
                                                                                                                                
CHAIR COGHILL suggested Ms. Meade could add to the discussion.                                                                  
                                                                                                                                
9:26:06 AM                                                                                                                    
NANCY  MEADE, General  Counsel, Administrative  Staff, Office  of                                                               
the Administrative Director, Alaska  Court System, said the court                                                               
doesn't  take  a  position  on  that  particular  provision,  but                                                               
Senator Wielechowski  raised a valid  question. The  committee is                                                               
aware of  the issue so  it's a policy call  whether to put  it in                                                               
statute or not.                                                                                                                 
                                                                                                                                
CHAIR COGHILL commented  that it appears to be more  a balance of                                                               
power  discussion  between  the  court  and  legislature  than  a                                                               
separation of powers issue.                                                                                                     
                                                                                                                                
He questioned  whether the  nine members of  the board  should be                                                               
confirmed  by  the  legislature.  [The  question  and  subsequent                                                               
discussion related  to an amendment, labeled  28-LS0309\O.2, that                                                               
was not offered.]                                                                                                               
                                                                                                                                
MR. VAN GOOR  said he couldn't think of an  example of an elected                                                               
local,   state,  or   federal  official   that  also   stood  for                                                               
confirmation  by  their  respective legislative  body.  He  cited                                                               
examples  of  the  mayor  of Anchorage,  the  governor,  and  the                                                               
President of the United States.                                                                                                 
                                                                                                                                
He referenced  Section 4.10 of the  Alaska Constitution regarding                                                               
the  Commission  on Judicial  Conduct  and  highlighted that  the                                                               
public  members are  appointed  by the  governor  and subject  to                                                               
confirmation,  the attorney  members appointed  by the  board are                                                               
subject to  confirmation, but the  judges and justices  who serve                                                               
are  elected by  their fellow  judges  and justices  and are  not                                                               
subject to confirmation.                                                                                                        
                                                                                                                                
MR.  VAN GOOR  said the  ABA  isn't interested  in making  public                                                               
office difficult  for public members  to hold and  it's certainly                                                               
unfortunate if  public members have  been subjected to a  type of                                                               
cross examination  unrelated to  their fitness for  the appointed                                                               
position.                                                                                                                       
                                                                                                                                
9:32:45 AM                                                                                                                    
CHAIR COGHILL characterized the Board  of Governors of the Alaska                                                               
Bar Association as  cartel like. Public members  face a different                                                               
type of scrutiny but serve equally  on that board. He asked about                                                               
the openness of the election process.                                                                                           
                                                                                                                                
MR. VAN  GOOR explained that  it's open  to any active  member of                                                               
the  bar who  wants to  serve. The  board is  divided into  three                                                               
districts:  the combined  second and  fourth judicial  districts;                                                               
the  third  judicial  district in  Southcentral;  and  the  first                                                               
judicial  district in  Southeast. One  member is  elected by  the                                                               
membership  statewide. The  letters of  intent are  published and                                                               
the individual runs for office like any other elected official.                                                                 
                                                                                                                                
CHAIR COGHILL  expressed interest in further  discussions because                                                               
public members seemed to face different scrutiny.                                                                               
                                                                                                                                
9:35:21 AM                                                                                                                    
SENATOR  DYSON  asked  for  written  information  about  how  the                                                               
process in Alaska compares to other states.                                                                                     
                                                                                                                                
MR. VAN GOOR agreed to provide the information.                                                                                 
                                                                                                                                
SENATOR MCGUIRE  suggested that it  would probably be  helpful if                                                               
the  chair  was  given  a  general overview  of  the  Alaska  Bar                                                               
Association and how it is different.                                                                                            
                                                                                                                                
MR. VAN  GOOR reiterated that the  ABA would be happy  to provide                                                               
the information.                                                                                                                
                                                                                                                                
9:38:53 AM                                                                                                                    
THOMAS  S.  OBERMEYER,   SR.,  representing  himself,  Anchorage,                                                               
Alaska, stated that  he has been licensed to practice  law in the                                                               
state of Missouri  for 23 years and has been  required to take 15                                                               
hours of  CLE and 2  hours of ethics every  year. This is  far in                                                               
excess of  the Alaska Bar  Association requirements,  yet passage                                                               
rates on  the ABA  exam are remarkably  low compared  to Missouri                                                               
and other states. He offered his  belief that the Alaska bar exam                                                               
is  not a  test of  minimal competence;  it's a  test of  varying                                                               
standards  and  exclusion  that  serves  to  restrain  trade.  He                                                               
maintained that  the ABA can set  the passage rates based  on the                                                               
essays, although there is some  discussion about transitioning to                                                               
the Uniform Bar Examination. He  relayed that the many practicing                                                               
attorneys he contacted  throughout the state said  they found the                                                               
exam itself had very little to  do with their practice of law. He                                                               
said he  was denied  reciprocity from  Missouri under  Alaska Bar                                                               
Rule 2.2(b)3, which says a person  who has failed the bar exam in                                                               
the last five  years cannot be admitted. He  maintained that this                                                               
standard  isn't uniform,  because  others  in similar  situations                                                               
have not been denied.                                                                                                           
                                                                                                                                
MR. OBERMEYER asked  the committee to deny  the eight-year sunset                                                               
extension  for  the   Board  of  Governors  of   the  Alaska  Bar                                                               
Association.  In the  past the  extension was  four years  and he                                                               
would suggest no more than a two-year extension.                                                                                
                                                                                                                                
SENATOR MCGUIRE  asked Mr. Van  Goor why Mr. Obermeyer  was being                                                               
denied reciprocity when others are not.                                                                                         
                                                                                                                                
MR. VAN  GOOR explained that  the bar rule  regarding reciprocity                                                               
admission has  a public protection  basis. Originally it  said an                                                               
individual who  has taken  and failed  an Alaska  bar examination                                                               
would never  qualify for  reciprocity. That  rule was  changed to                                                               
say  a  person cannot  apply  for  reciprocity admission  if  the                                                               
person  has taken  and  failed any  bar  examination within  five                                                               
years.  Mr.  Obermeyer  is  not   being  singled  out;  it  is  a                                                               
requirement  that would  apply to  any  person seeking  admission                                                               
from a reciprocal state.                                                                                                        
                                                                                                                                
SENATOR MCGUIRE  asked if the  ABA was considering  the universal                                                               
multi-state test in lieu of the essay.                                                                                          
                                                                                                                                
MR.  VAN GOOR  responded that  Justice Daniel  Winfree asked  the                                                               
board to  look at  the Uniform Bar  Examination (UBE),  which has                                                               
been proposed  by the  National Conference  of Bar  Examiners. It                                                               
consists   of  the   multi-state   bar   exam,  the   multi-state                                                               
performance  test,  and  the multi-state  essay  examination.  In                                                               
addition, an applicant  for admission to the ABA has  to pass the                                                               
multi-state  professional  responsibility  exam.  The  difference                                                               
between  the UBE  and  the current  exam is  that  the essay  and                                                               
performance portions would be drafted  by the National Conference                                                               
of  Bar Examiners.  The  grading  would continue  to  be done  in                                                               
Alaska  except for  the multiple  choice portion  which would  be                                                               
graded by the National Conference of Bar Examiners.                                                                             
                                                                                                                                
MR. VAN  GOOR said it's also  important to keep in  mind that the                                                               
ABA does  not restrict the number  of times a person  may sit for                                                               
the Alaska Bar exam. For  2010-2012, the overall passage rate was                                                               
65  percent.  For first  time  takers  the  passage rate  was  77                                                               
percent, but for  re-applicants the passage rate  was 32 percent.                                                               
The Alaska  Bar exam  is excellent  and in  the bar's  opinion it                                                               
works.                                                                                                                          
                                                                                                                                
9:52:16 AM                                                                                                                    
SENATOR  WIELECHOWSKI expressed  concern with  Section 3  and the                                                               
legal  opinion that  "a statute  prescribing  required CLE  hours                                                               
would violate  the separation of  powers doctrine." He  asked the                                                               
chair if he would consider removing that section from the bill.                                                                 
                                                                                                                                
CHAIR COGHILL offered  his belief that it was  within reason, and                                                               
that it was worth pushing the legal debate.                                                                                     
                                                                                                                                
SENATOR  WIELECHOWSKI  quipped  that   could  be  an  example  of                                                               
legislative overreach that needed a task force.                                                                                 
                                                                                                                                
CHAIR COGHILL opined that it pushes against the right edge.                                                                     
                                                                                                                                
9:54:31 AM                                                                                                                    
SENATOR MCGUIRE offered her belief that  it was wrong to say that                                                               
there is  no opportunity for  the state to  reach in and  ask for                                                               
higher standards.                                                                                                               
                                                                                                                                
CHAIR  COGHILL said  that  as  long as  he  was  chair he  wasn't                                                               
opposed to continuing the discussion.                                                                                           
                                                                                                                                
SENATOR WIELECHOWSKI  clarified that he  was not arguing  that it                                                               
wasn't a good  idea to hold the members to  a higher standard; he                                                               
was  arguing that  Section 3  goes against  a legal  opinion. The                                                               
chair specifically  asked legislative counsel if  the legislature                                                               
can statutorily  direct the  Board to  require certain  CLEs. The                                                               
legal  opinion  specifically  said that  "a  statute  prescribing                                                               
required  CLE  hours  would  violate  the  separation  of  powers                                                               
doctrine."                                                                                                                      
                                                                                                                                
9:57:49 AM                                                                                                                    
SENATOR MCGUIRE  moved to report  CS for  HB 63, version  O, from                                                               
committee  [with individual  recommendations]  and attached  zero                                                               
fiscal note.                                                                                                                    
                                                                                                                                
9:58:07 AM                                                                                                                    
CHAIR COGHILL  objected to say he  tips his hat to  the attorneys                                                               
that  work  with  the  Board   of  Governors  and  do  continuing                                                               
education and pro bono work. He removed the objection.                                                                          
                                                                                                                                
9:58:36 AM                                                                                                                    
CHAIR  COGHILL announced  that, without  objection, CSHB  63(FIN)                                                               
moved from Senate Judiciary Standing Committee.                                                                                 

Document Name Date/Time Subjects
Legal Memo April 9 2013 re Board of Governors.pdf SJUD 4/12/2013 9:00:00 AM
HB 63
Letter from t Obermeyer 4 11 2013 HB 63.pdf SJUD 4/12/2013 9:00:00 AM
HB 63
Email from T. Obermeyer - HB 63.pdf SJUD 4/12/2013 9:00:00 AM
HB 63