03/08/2023 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB28 | |
| HB82 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 82 | TELECONFERENCED | |
| += | HB 28 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 8, 2023
1:01 p.m.
DRAFT
MEMBERS PRESENT
Representative Sarah Vance, Chair
Representative Jamie Allard, Vice Chair
Representative Craig Johnson
Representative David Eastman
Representative Andrew Gray
Representative Cliff Groh
MEMBERS ABSENT
Representative Ben Carpenter
COMMITTEE CALENDAR
HOUSE BILL NO. 28
"An Act restricting the release of certain records of
convictions; and providing for an effective date."
- HEARD & HELD
HOUSE BILL NO. 82
"An Act relating to the selection, retention, and rejection of
judicial officers for the court of appeals and the district
court and of magistrates; relating to the duties of the judicial
council; and relating to the duties of the Commission on
Judicial Conduct."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 28
SHORT TITLE: ACCESS TO MARIJUANA CONVICTION RECORDS
SPONSOR(s): REPRESENTATIVE(s) WRIGHT
01/19/23 (H) PREFILE RELEASED 1/9/23
01/19/23 (H) READ THE FIRST TIME - REFERRALS
01/19/23 (H) JUD, FIN
03/01/23 (H) JUD AT 1:00 PM GRUENBERG 120
03/01/23 (H) Heard & Held
03/01/23 (H) MINUTE(JUD)
03/08/23 (H) JUD AT 1:00 PM GRUENBERG 120
BILL: HB 82
SHORT TITLE: SELECTION AND REVIEW OF JUDGES
SPONSOR(s): REPRESENTATIVE(s) RAUSCHER
02/27/23 (H) READ THE FIRST TIME - REFERRALS
02/27/23 (H) JUD, FIN
03/06/23 (H) JUD AT 1:30 PM GRUENBERG 120
03/06/23 (H) Scheduled but Not Heard
03/08/23 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
CHELSEA FOSTER, Board Member
Alaska Marijuana Industry Association
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 28.
LACY WILCOX, Legislative Liaison
Alaska Marijuana Industry Association
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 28.
REPRESENTATIVE STANLEY WRIGHT
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided an overview of HB 28 and answered
questions from members of the committee, as the prime sponsor.
ALLAN RIORDAN-RANDALL, Staff
Representative Stanley Wright
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
28, on behalf of Representative Wright, prime sponsor.
LISA PURINTON, Chief
Criminal Records and Identification Bureau
Department of Public Safety
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
28.
NANCY MEADE, General Counsel
Alaska Court System
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
28.
REPRESENTATIVE GEORGE RAUSCHER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 82, as the prime sponsor.
RYAN MCKEE, Staff
Representative George Rauscher
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided a summary of changes in the
proposed CS for HB 82, Version B, on behalf of Representative
Rauscher, prime sponsor.
LOREN LEMAN
Anchorage, Alaska
POSITION STATEMENT: Offered invited testimony during the
hearing on HB 82.
FRITZ PETTYJOHN
Sonora, California
POSITION STATEMENT: Offered invited testimony during the
hearing on HB 82.
ACTION NARRATIVE
1:01:28 PM
CHAIR SARAH VANCE called the House Judiciary Standing Committee
meeting to order at 1:01 p.m. Representatives C. Johnson,
Eastman, Gray, Groh, Allard, and Vance were present at the call
to order.
CHAIR VANCE announced that she was offering Representative Gray
a chance to clarify the comments he made during a previous
committee meeting [on 3/1/23].
REPRESENTATIVE GRAY referred to the discussion regarding access
to marijuana conviction records. He stressed that he was not
speaking on behalf of the U.S. Department of Defense (DOD), the
U.S. Army, the National Guard, or the Department of Military &
Veterans' Affairs (DMVA). He explained that his intention was
never to encourage people to lie or commit a felony; conversely,
his intention was to highlight a barrier to entry into military
service. He stated that serving in the military was a great
privilege, adding that he wanted as many qualified people as
possible to have the same opportunity.
REPRESENTATIVE VANCE apologized to Representative Eastman for
not allowing him the same privilege [of clarifying a statement
on the record].
HB 28-ACCESS TO MARIJUANA CONVICTION RECORDS
1:03:57 PM
CHAIR VANCE announced that the first order of business would be
HOUSE BILL NO. 28, "An Act restricting the release of certain
records of convictions; and providing for an effective date."
CHAIR VANCE opened public testimony on HB 28.
1:04:11 PM
The committee took a brief at-ease.
1:04:41 PM
CHELSEA FOSTER, Board Member, Alaska Marijuana Industry
Association, stated her support for HB 28. As a result of
restricting access to conviction records, she listed the
following benefits: employment opportunities; higher wages;
access to housing; removing barriers to full engagement in
family life; and putting an end to the social stigma and anxiety
associated with a criminal record. She shared key research
findings. She urged the committee to support HB 28, describing
the bill as equitable and fiscally responsible for Alaska.
1:06:36 PM
REPRESENTATIVE EASTMAN asked whether she was advocating for an
expungement of [marijuana conviction records].
MS. FOSTER clarified that she was advocating for the sealing of
records on Court View.
1:07:18 PM
LACY WILCOX, Legislative Liaison, Alaska Marijuana Industry
Association, offered a prepared statement [included in the
committee packet], which read as follows [original punctuation
provided]:
The Alaska Marijuana Industry Association would like
to offer our support for HB 28.
We believe that this piece of legislation is an
incremental but important step in the right direction
towards destigmatizing cannabis consumption. While it
is hard for us to identify specific individuals whom
this legislation would impact due to confidentiality,
we do know anecdotally that public records impact an
individual's ability to secure fair housing, fruitful
employment, and education opportunity.
It is common knowledge that employers, schools, and
landlords use CourtView to perform background checks
on applicants. In CourtView a simple marijuana
possession charge appears similar to this,
"MisconductControlled Substance 6A". Very few
understand the drug schedule, and most people
performing background checks are unlikely to do the
next step of discovery to see that VIA is only
marijuana. They will simply put the application aside.
Therefore, anything that removes even a small barrier
to positive life outcomes, we will support.
We want to thank the sponsor and prior session
sponsors of similar legislation and urge its support
and passage by both bodies.
1:08:59 PM
REPRESENTATIVE EASTMAN asked whether an employer had the right
to know whether an applicant had a marijuana conviction on
record.
MS. WILCOX shared her understanding that nothing in HB 28 would
prohibit employers from asking applicants about their criminal
history.
REPRESENTATIVE EASTMAN asked whether dishonesty about one's
criminal history was a fireable offense.
MS. WILCOX suspected that consequences could ensue if a lie was
told. She indicated that it was up to employers to use their
discretion on such matters.
1:11:17 PM
CHAIR VANCE closed public testimony on HB 28. She invited the
bill sponsor to brief the committee on the merits of the
proposed legislation.
1:11:56 PM
REPRESENTATIVE STANLEY WRIGHT, Alaska State Legislature, prime
sponsor of HB 28, conveyed that the bill would provide an
opportunity to right a wrong. He acknowledged the severity of
breaking the law; however, he pointed out that the recreational
use and possession of marijuana was legalized in Alaska. He
opined that every person was deserving of hope and the ability
to move forward. He concluded by humbly asking the committee to
hear his words and take them to heart.
1:13:16 PM
REPRESENTATIVE ALLARD asked how the bill would impact background
checks.
1:14:43 PM
ALLAN RIORDAN-RANDALL, Staff, Representative Stanley Wright,
Alaska State Legislature, clarified that state or federal
background checks would not be impacted.
REPRESENTATIVE ALLARD expressed concern that employers could be
deceived by potential employees.
REPRESENTATIVE WRIGHT said he was not encouraging applicants to
lie. He reiterated that his intent was to right a wrong and to
encourage conversations between employers and employees.
REPRESENTATIVE ALLARD disagreed with the sentiment that the bill
would "right a wrong," as any person with a marijuana conviction
had committed a crime.
CHAIR VANCE requested a sectional analysis of the bill.
1:17:03 PM
REPRESENTATIVE WRIGHT presented the sectional analysis for HB 28
[included in the committee packet], which read as follows
[original punctuation provided]:
SECTION I: It is the intention of the legislation to
reduce barriers to employment and other basic daily
functions for individuals who under past statute were
convicted of low level marijuana related crimes.
SECTION II: Describes when, why and to what agencies
or organizations information protected in this bill
may be released.
SECTION III: Persons aged 21 years or older shall in
the provisions of this bill have records of low level
marijuana convictions as detailed in this section,
which by todays statutes made to be inaccessible other
than as listed in section II.
SECTION IV: Records relating to the individuals and
occurrences in this bill shall not be publicly
published by the Alaska Court System. Information
shall be made available on how to obtain information
removed from public view.
SECTION V: Records currently posted by the Alaska
Court System shall be removed from public view.
SECTION VI: An effective date for this act shall be;
1st of January 2024.
CHAIR VANCE asked Ms. Purinton to describe how Section 2 would
impact the Department of Public Safety (DPS).
1:19:04 PM
LISA PURINTON, Chief, Criminal Records and Identification
Bureau, Department of Public Safety, stated that Section 2
sought to modify AS 12.62.160 [Release and use of criminal
justice information; fees]. She explained that the bill would
limit low-level marijuana convictions, as outlined in HB 28,
from being displayed on "any person" reports, which were
background checks often conducted by landlord/tenants or
generated by non-state/non-federal required record checks.
CHAIR VANCE asked Ms. Purinton to define "expunged" versus
"sealed."
1:21:36 PM
MS. PURINTON explained that an expunged record would no longer
exist in the system, whereas a sealed record was only accessible
in a limited capacity. She defined sealing as "limited
dissemination."
CHAIR VANCE asked whether HB 28 sought to seal or expunge [the
marijuana conviction records].
MS. PURINTON said the bill would seal the record of conviction,
as the marijuana conviction would still exist on record for
specific authorized purposes, such as federal and state
authorized background checks.
CHAIR VANCE invited questions from members of the committee.
1:23:12 PM
REPRESENTATIVE EASTMAN asked whether an employer could receive
access to a person's full criminal history should the bill pass.
MS. PURUNTON said it would depend on whether the employer was
authorized by state or federal law. She shared, for example,
that the Anchorage School District (ASD) was authorized by state
law to perform background checks as a condition of employment;
therefore, ASD could obtain access to an applicant's full
criminal history report. She continued to explain that if the
bill were to pass, "any person" reports requested by employers
would exclude low-level marijuana convictions.
REPRESENTATIVE EASTMAN asked whether a disclaimer would be
included with the background check.
MS. PURINTON confirmed that there was a "quasi" disclaimer
notice highlighting the limited scope of the "any person" report
in accordance with AS 12.62.160(b)(8). She explained that non-
conviction records were not displayed in addition to records
that had not been adjudicated.
1:25:47 PM
REPRESENTATIVE EASTMAN asked who could access sealed conviction
records.
MS. PURINTON stated that the records would be available in the
state repository to all entities listed under AS 12.62.160.
CHAIR VANCE inquired about the DPS fiscal note.
1:27:20 PM
MS. PURINTON informed the committee that year one costs would be
higher to provide for a contract programmer at the estimated
cost of $56,000 to modify the main frame system to limit the
dissemination of the marijuana conviction records. The
additional cost, she explained, was to fund a temporary position
to research all record sealing requests and update the criminal
history repository accordingly.
CHAIR VANCE highlighted the language "upon request of the
defendant" and inquired about the impact of removing that
language from the fiscal note.
MS. PURINTON suspected that the temporary [criminal justice
technician] position would be needed for a longer period. She
estimated that 8,000 records could potentially qualify for
restricted access under the proposed legislation.
CHAIR VANCE indicated she was trying to understand the
anticipated workload.
1:31:26 PM
REPRESENTATIVE ALLARD sought to confirm that individuals who
were eligible for this policy could not have committed any other
crime.
MS. PURINTON shared her understanding that [marijuana
possession] must be the sole conviction in the case; further,
the offender must have been under the age of 21 when the offense
was committed.
MS. PURINTON, in response to a follow-up question from
Representative Allard, clarified that the bill pertained
specifically to crimes involving under one ounce of marijuana.
1:32:47 PM
REPRESENTATIVE GRAY asked where the $56,000 [to fund the
contract programmer] was included on the fiscal note.
MS. PURINTON said the total cost in year one should include
$56,000 for the programming cost.
REPRESENTATIVE GRAY restated his question, referencing the "Year
1" and "Year 2" breakdown of costs on page 2. He asked where
the $56,000 was included in that.
MS. PURINTON, referring to page 1 of the fiscal note, indicated
that $56,000 was included in the $72,000 cost of services.
1:34:44 PM
REPRESENTATIVE EASTMAN inquired about the process for people
under the age of 21 at the time of conviction.
MS. PURINTON shared her understanding that records of
individuals under the age of 21 would still be displayed and
available.
REPRESENTATIVE EASTMAN asked whether the criminal records of
minors were handled differently.
MS. PURINTON said the state repository had limited criminal
history records for individuals under the age of 18.
1:36:39 PM
REPRESENTATIVE ALLARD said she would consider supporting the
bill if the individuals paid for the sealing of their records.
She asked whether the sponsor would consider implementing this
change into the bill.
REPRESENTATIVE WRIGHT said he would have to think about it.
Initially, however, he said he would not be supportive because
these individuals were already struggling financially.
REPRESENTATIVE ALLARD opined that the burden should not be
placed on taxpayers.
1:37:47 PM
REPRESENTATIVE EASTMAN asked why the bill didn't seek to expunge
low-level marijuana conviction records.
REPRESENTATIVE WRIGHT shared his belief that sealing the
records, as opposed to expunging them, was more palatable. He
suggested that a conversation about expungement could be had in
the future.
1:38:32 PM
REPRESENTATIVE EASTMAN directed attention to Section 3 of the
bill. He asked whether HB 28 would extend to charges that did
not result in a conviction.
REPRESENTATIVE WRIGHT reiterated that the bill only applied to
people that were charged solely with [a low-level marijuana]
conviction.
1:40:01 PM
REPRESENTATIVE ALLARD inquired about the price per person if all
8,000 records were to be sealed.
MS. PURINTON offered to follow up with the requested
information.
1:40:44 PM
REPRESENTATIVE EASTMAN referred to page 3, line 19, of HB 28 and
inquired about the notice that would be provided on how to
obtain a criminal history record.
1:41:36 PM
NANCY MEADE, General Counsel, Alaska Court System, pointed out
that a disclaimer and a notice on how to search criminal records
was already provided on Court View.
REPRESENTATIVE EASTMAN expressed confusion. He remarked, "If
we're saying in Section 2 of the bill that DPS can't release
this information to just anybody, why are we saying in Section 4
of the bill that just anyone can go to DPS and get this
information."
MS. MEADE interpreted Section 4 of the bill to suggest that a
general notice would be posted on the website directing people
to DPS for criminal history record checks. Nonetheless, she
acknowledged that if HB 28 were to pass, [marijuana conviction
records] would not be accessible via DPS. She added that the
only way to obtain the records in question would be at the
courthouse.
REPRESENTATIVE EASTMAN asked whether people would have access to
the sealed information at the courthouse.
MS. MEADE noted that from the perspective of the courts, these
records would not be considered "sealed," as the term meant
something different to the court system. She clarified that,
per Sections 3-4 of the bill, the marijuana convictions would
simply be removed from Court View. In response to
Representative Eastman, she answered yes, the kiosk at the
courthouse would provide access to an individual's full criminal
history.
REPRESENTATIVE EASTMAN referred to Section 3 and asked whether
the court fell within the statutory definition of "agency."
MS. MEADE answered no.
1:46:34 PM
CHAIR VANCE announced that HB 28 was held over.
1:47:07 PM
The committee took a brief at-ease.
HB 82-SELECTION AND REVIEW OF JUDGES
1:49:22 PM
CHAIR VANCE announced that the final order of business would be
HOUSE BILL NO. 82, "An Act relating to the selection, retention,
and rejection of judicial officers for the court of appeals and
the district court and of magistrates; relating to the duties of
the judicial council; and relating to the duties of the
Commission on Judicial Conduct."
1:49:38 PM
REPRESENTATIVE GEORGE RAUSCHER, Alaska State Legislature, prime
sponsor, presented HB 82. He provided the sponsor statement
[included in the committee packet], which read as follows
[original punctuation provided]:
House Bill 82 would bring the Judicial system by to
what was envisioned by the framers of the Alaska
Constitution. First it should be noted that there are
two types of judges. 1. Constitutional Judges:
Superior Court Judges and Supreme Court Justices,
which must be vetted by the Judicial Council (Council)
and the Governor can only select from a list of two or
more names submitted by the Council. HB 82 holds
constitutional judges harmless. The operating
authority of this provision is: Art IV Sec 5. "The
Governor shall fill any vacancy in an office of the
supreme court justice or superior court judge by
appointing one of two or more persons nominate by the
Judicial Council.
2. Statutory Judges: District, Appellate and
Magistrates. The last of the 3 is not in this
legislation. Existing statute currently follows the
Judicial Council nomination process. However, judicial
candidates are subject to the legislature's discretion
on how they are selected, appointed and whether they
are confirmed by the legislature. HB 82 exercises the
legislature's delegated constitutional authority to
set policy on how these statutory judges are selected
to serve on the bench. The operating authority of the
provision is: Art IV Sec 4. "Judges of other courts
shall be selected in a manner, for terms, and with
qualifications as prescribed by law."
Currently, Appellate and District Court Judges are
nominated in a statute defined process that mirrors
the Art IV Sec 5 Judicial Council process.
The Council is structured to give a majority of the
Alaska Bar (Bar) members the control of who gets to be
a judge or justice. The deciding vote in a tie is
given to the ex-officio seventh member, the Chief
Justice. The Chief Justice has voted 79 times to break
ties since 1984.
Additionally, Bar members of the Council are appointed
internally by the Bar with no legislative confirmation
or administrative oversight. Virtually all the
Judiciary Branch is, "beyond the democratic control of
a more non-bias process."
The constitutional framers that sought to protect
upper benches from becoming bias when choosing their
own installed safeguards, which left the lower benches
up to legislative control.
Interesting enough, till now the legislature ceded
100% control, and it mirrors the "constitutional"
Alaska Bar selection controls.
The Alaska Constitutional Convention Judiciary
Committee Consultants wrote, as reported by Vic Fisher
in his book, "Alaska's Constitutional Convention." -
"No state constitution has ever gone this far in
placing one of the three branches of the government
beyond the reach of democratic controls. We feel that
in its desire to preserve the integrity of the courts,
the convention has gone farther than is necessary or
safe (emphasis added) in putting them in the hands of
a private professional group, however, public-spirited
its members may be.
House bill 82 strikes the "safe" constitutional
balance envisioned by the framers by giving the
governor and the people's representatives an
appropriate say in who sits on the certain statutory
benches. It allows the governor to appoint and the
legislature to confirm who fills district court and
appellate judges. It still allows the Council to
screen and recommend all candidates, but the governor
is not mandated to appoint from only the Bar submitted
list. The Governor can nominate and appoint his own
Judicial Council screened magistrate, district, and
appellate judges.
HB 82 exercises the authority expressly granted in the
constitution, for the legislature and governor to
prescribe how District Court judges and Appellant
Court judges are nominated.
1:52:45 PM
REPRESENTATIVE ALLARD moved to adopt the proposed committee
substitute (CS) for HB 82, Version 32-LS0483\B, Gunther/Radford,
3/4/23, as the work draft. There being no objection, Version B
was before the committee.
1:56:49 PM
The committee took an at-ease from 1:56 p.m. to 2:00 p.m.
2:00:22 PM
REPRESENTATIVE RAUSCHER deferred to his staffer, Mr. McKee, to
provide a summary of changes in Version B.
2:00:43 PM
RYAN MCKEE, Staff, Representative George Rauscher, Alaska State
Legislature, on behalf of Representative Rauscher, prime
sponsor, provided a summary of changes in the proposed CS to HB
82, Version B, which read as follows [original punctuation
provided]:
1. Title change;
Adds: "Selection of magistrates" to tile.
Adds: Relating to the conduct of magistrates; and
relating to the impeachment, disqualification,
suspension, removal, retirement, and censure of
magistrates, to the title.
2. Body of Bill;
Removes magistrates from the approval and rejection
process on the ballot that all other judges are
subject to. Sec 1, Sec 2, Sec3, Sec 4, Sec 5, Sec 6,
Sec 7, Sec 8, Sec 9, are all eliminated.
Adds magistrates to the legislative confirmation
process.
Streamlines the recommendation process for the
Judicial Council;
• Version\A had a two tier system of nominations,
the Judicial Council nominated, and if the
governor did not like nominations, he then could
nominate his own.
• Version\B both the Governor and Judicial
Council simultaneously nominate on the same time
frame.
Eliminates magistrates from the judicial report
associated with removal and retention process.
Retains magistrates in the Commission on Judicial
Conduct and impeachment process.
2:02:17 PM
REPRESENTATIVE EASTMAN asked why the changes in Version B were
being proposed.
REPRESENTATIVE RAUSCHER stated that the purpose was to add
"magistrate" (indisc.), which was omitted from the original
version of the bill.
REPRESENTATIVE EASTMAN attempted to clarify whether magistrates
were being removed from or added to the retention removal
process.
2:03:48 PM
REPRESENTATIVE RAUSCHER clarified that Version B would eliminate
magistrates from the judicial report associated with the removal
and retention process; however, the proposed CS retained
magistrates in the Commission on Judicial Conduct and
impeachment process.
CHAIR VANCE welcomed invited testimony from former lieutenant
governor Loren Leman.
2:04:49 PM
LOREN LEMAN, former lieutenant governor, stated his support for
HB 82. He shared a personal anecdote recounting his experience
as a freshman in the Sixteenth Alaska State Legislature. He
opined that the process for selecting judges was a detriment to
public policy in Alaska. He recalled that the consultants to
the Alaska Constitutional Convention [1955-1956] had advised
against placing power in the hands of a private professional
organization. He remarked that that with the exception of
Justice Craig Stowers, strict constructionists had been denied
appointment to the Alaska Supreme Court. He suggested that
every governor since statehood had complained about the limited
choices presented to them. He argued that although HB 82 would
not immediately solve the imbalance of judicial temperament on
the Alaska Supreme Court, it would be a step in the right
direction. He opined that the bill demonstrated a process with
better balance that would work well for district and appellate
courts. He urged the committee to consider the legislation,
advance it, and support the bill on the House floor. He
characterized HB 82 as a novel approach that would move the
judiciary closer to the concept of "We the people."
2:11:19 PM
REPRESENTATIVE GRAY asked whether the purpose of the bill was to
get judges with a more political agenda on the bench.
MR. LEMAN asked Representative Gray to clarify the question.
REPRESENTATIVE GRAY remarked, "Do you want people to think like
Republicans to give more of a partisan view of the law?"
MR. LEMAN shared his understanding that the intent was to
implement a fair and balanced system for nominating and
selecting judges. He argued that the existing system, which he
termed a "merit plan," wasn't working. He added that under the
current system, strict constructionists "need not apply."
REPRESENTATIVE GRAY sought to verify that Mr. Leman had stated
that the intent was to [select] judges that had no political
agenda and applied the law fairly. He asked whether that was a
fair summation.
MR. LEMAN confirmed that the goal was to select judges who
applied the law fairly.
2:14:33 PM
REPRESENTATIVE EASTMAN asked how the jurisprudence of the
justices on the Alaska Supreme Court compared to other states or
the U.S. Supreme Court in terms of diversity.
MR. LEMAN opined that the Alaska Supreme Court was less diverse.
He shared his belief that the bench was lacking strict
constructionists.
2:15:59 PM
REPRESENTATIVE ALLARD suggested that the voice of the people was
not being heard by the current judicial selection process
because elected officials "had no say." She asked whether Mr.
Leman agreed with that statement.
MR. LEMAN opined that the Alaska Judicial Council was
effectually making selections for the governor by putting forth
two names, one of which the governor would never pick. He said
he would support a provision requiring [the governor's]
selection to be subject to confirmation by the Senate.
REPRESENTATIVE ALLARD asked whether the judicial system in
Alaska was imbalanced.
MR. LEMAN answered yes, adding that the court was "5-0." He
opined that Alaska would be better served with a more balanced
court.
2:20:27 PM
REPRESENTATIVE GRAY inquired about the meaning of the expression
"5-0 court."
MR. LEMAN shared his belief that all five judges shared a
comparable judicial philosophy that was not based on a strict
reading of the Constitution of the State of Alaska.
REPRESENTATIVE GRAY asked Mr. Leman to expound on the uniting
philosophy of the Alaska Supreme Court and to provide an
example.
MR. LEMAN discussed the parental right to privacy, citing
Article 1, Section 22 [Right of Privacy] of the state
constitution.
2:23:40 PM
REPRESENTATIVE GROH sought to confirm that three of the seven
members of the Alaska Judicial Council were appointed by the
governor, as provided by the constitution.
MR. LEMAN responded yes, adding that those members were also
confirmed by the legislature.
REPRESENTATIVE GROH asked Mr. Leman to define the term "strict
constructionist."
CHAIR VANCE asked whether this line of questioning was germane
to the bill.
REPRESENTATIVE GROH understood that Mr. Leman would like
Alaska's judicial system to select more strict constructionists,
which was the basis for his support for the legislation. He
sought to understand the meaning of the term.
2:25:07 PM
MR. LEMAN defined "strict constructionist" as someone who
applied the constitution at face value.
REPRESENTATIVE GROH asked for examples of cases that would have
been decided differently had Mr. Leman's preferred system for
judicial selection been in effect.
MR. LEMAN remarked, "I haven't made that list, but I can tell
you that that particular initiative passed by the people of
Alaska by a large margin would have been one of them on that
list."
REPRESENTATIVE GROH pointed out that initiatives were not cases.
MR. LEMAN indicated that the initiative turned into a case.
2:26:58 PM
REPRESENTATIVE EASTMAN asked whether creating a law school in
Alaska or changing the score required to pass the Alaska Bar
Exam would solve Mr. Leman's concern.
MR. LEMAN said offering more options would be a good idea;
however, he argued that it would not resolve the basic
unfairness in the system, as the system for judicial nomination
and selection was flawed.
2:30:21 PM
FRITZ PETTYJOHN, former legislator, noted that he had been a
member of the Alaska Bar Association (ABA) for 40 years. He
stated that he rejected the philosophy that lawyers should be
agents of social change through the court system. He opined
that an overwhelming majority of ABA members favored judicial
activism, as opposed to judicial restraint. He argued that
there was no balance or diversity in the Alaska judicial system
resulting in a court system that injected itself into public
policy. He believed that the judicial system should be confined
to interpreting the law. He defined the bill as a small step in
the right direction. He expressed his hope that in the future,
the state constitution would be amended to allow the legislature
and the governor some control over the selection of judges. He
encouraged the committee to pass the bill.
CHAIR VANCE inquired about the dangers of uniformity.
MR. PETTYJOHN stated that judicial conservatives like himself
were not represented on the Alaska Supreme Court. He emphasized
the need for diverse philosophies, adding that ideological
conformity was being enforced by the ABA. He characterized the
ABA as a group of self-interested lawyers who get to control who
becomes a judge.
2:38:47 PM
REPRESENTATIVE GRAY asked how changing Alaska's judicial system
to conform with the Lower-48 or the Federal Judiciary would bar
judges [with a certain philosophy], like Ruth Bader Ginsburg or
Clarence Thomas.
MR. PETTYJOHN said he did not understand the question.
REPRESENTATIVE GRAY asked how HB 82 would make the system less
partisan.
MR. PETTYJOHN said he would like to see more judges like
Clarence Thomas on the Alaska Supreme Court. Conversely, he
proclaimed that Ruth Bader Ginsburg believed in advancing her
conception of social justice through the court system, which he
disagreed with; consequently, he said, he would oppose judges
who shared the same political philosophy as Ms. Ginsburg.
REPRESENTATIVE GRAY asked how the Alaska Supreme Court lacked
diversity.
MR. PETTYJOHN said, "Just read their opinions." He asserted
that the record of the Alaska Supreme Court over the past 40
years showed a history of expanding their own power and
restricting the power of the legislature, the governor and
thereby, the people of Alaska.
REPRESENTATIVE GRAY asked whether past decisions would have been
different if more judges like Clarence Thomas had sat on the
bench.
MR. PETTYJOHN exclaimed, "Of course there would be."
2:42:37 PM
REPRESENTATIVE ALLARD remarked, "Are you stating that because
there are more Judge Ginsburg are you telling us that the
court system leans more towards that because you believe that's
who sits on the court system now?"
MR. PETTYJOHN answered, "That is the way the court system is
now. That's because the way the Alaska Bar Association has
determined the court system will be through its power over the
judicial selection."
2:44:26 PM
REPRESENTATIVE ALLARD asked whether there were instances in
which the court had interpreted state law in contradiction to
the legislative intent.
MR. PETTYJOHN asserted that [the Alaska Supreme Court] primarily
"perverted" the constitution to expand their own power. He
shared an example of judicial activism.
2:46:00 PM
REPRESENTATIVE GROH asked whether Mr. Pettyjohn had ever taken a
poll of practicing lawyers across the state to determine the
diversity of their attitudes.
MR. PETTYJOHN recounted a personal anecdote regarding the
Anchorage Bar Association and the legalization of marijuana. He
explained that after practicing law in Alaska for 41 years, he
found the ABA to be overwhelmingly liberal, left wing, democrat,
and [full of] judicial activists.
CHAIR VANCE asked the bill sponsor whether the purpose of the
bill was to allow the legislature to have a voice in the
appointment of judges and judicial officers.
2:48:56 PM
REPRESENTATIVE RAUSCHER likened the judicial selection process
to legislators picking the next legislators. He added that the
goal was to implement a comprehensive system with checks and
balances. He emphasized that the goal was not implement a more
progressive or conservative ideology, reiterating that a
balanced system was the goal.
CHAIR VANCE announced that HB 82 was held over.
2:52:57 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:52 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 82 - Sponsor Statement.pdf |
HJUD 3/6/2023 1:30:00 PM HJUD 3/8/2023 1:00:00 PM |
HB 82 |
| HB 82 - v.A.PDF |
HJUD 3/6/2023 1:30:00 PM HJUD 3/8/2023 1:00:00 PM |
HB 82 |
| HB 82 - Sectional Analysis.pdf |
HJUD 3/6/2023 1:30:00 PM HJUD 3/8/2023 1:00:00 PM |
HB 82 |
| HB 82 - PROPOSED CS v.B.pdf |
HJUD 3/6/2023 1:30:00 PM HJUD 3/8/2023 1:00:00 PM |
HB 82 |
| HB 28 - Sponsor Statement.pdf |
HJUD 3/8/2023 1:00:00 PM HJUD 4/14/2023 1:00:00 PM SFIN 4/23/2024 1:30:00 PM |
HB 28 |
| HB 28 - v.A.PDF |
HJUD 3/1/2023 1:00:00 PM HJUD 3/8/2023 1:00:00 PM HJUD 4/14/2023 1:00:00 PM |
HB 28 |
| HB 28 - Sectional Analysis.pdf |
HJUD 3/1/2023 1:00:00 PM HJUD 3/8/2023 1:00:00 PM HJUD 4/14/2023 1:00:00 PM |
HB 28 |
| HB 28 - Support Letter.pdf |
HJUD 3/1/2023 1:00:00 PM HJUD 3/8/2023 1:00:00 PM HJUD 4/14/2023 1:00:00 PM SFIN 4/23/2024 1:30:00 PM |
HB 28 |
| HB 28 - AMIA Support for HB 28 - 2.9.23.pdf |
HJUD 3/1/2023 1:00:00 PM HJUD 3/8/2023 1:00:00 PM HJUD 4/14/2023 1:00:00 PM |
HB 28 |