Legislature(2001 - 2002)

04/12/2001 09:13 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                              MINUTES                                                                                         
                     SENATE FINANCE COMMITTEE                                                                                 
                          April 12, 2001                                                                                      
                              9:13 AM                                                                                         
                                                                                                                                
                                                                                                                                
TAPES                                                                                                                       
                                                                                                                                
SFC-01 # 73,  Side A                                                                                                            
SFC 01 # 73,  Side B                                                                                                          
SFC 01 # 74,  Side A                                                                                                          
                                                                                                                              
CALL TO ORDER                                                                                                               
                                                                                                                                
Co-Chair Pete Kelly convened the meeting at approximately 9:13 AM.                                                              
                                                                                                                                
PRESENT                                                                                                                     
                                                                                                                                
Senator Pete Kelly, Co-Chair                                                                                                    
Senator Dave Donley, Co-Chair                                                                                                   
Senator Jerry Ward, Vice Chair                                                                                                  
Senator Loren Leman                                                                                                             
Senator Gary Wilken                                                                                                             
Senator Alan Austerman                                                                                                          
Senator Donald Olson                                                                                                            
Senator Lyda Green                                                                                                              
                                                                                                                                
Also Attending:  SENATOR DRUE PEARCE, Alaska State Legislature;                                                               
JUDGE RABINOWITZ                                                                                                                
                                                                                                                                
Attending via Teleconference:  From Anchorage:  STEPHANIE COLE,                                                               
Alaska Court System; WILLIAM COTTON, Alaska Judicial Council;                                                                   
                                                                                                                                
SUMMARY INFORMATION                                                                                                         
                                                                                                                              
SB 123 - FEDERALLY FUNDED PROJECTS OF RAILROAD                                                                                  
                                                                                                                                
After a brief discussion and testimony from the Alaska Railroad                                                                 
Corporation the bill was reported from Committee.                                                                               
                                                                                                                                
SJR 22 - CONST. AM: JUDICIAL OFFICERS' TERMS                                                                                    
                                                                                                                                
The Committee heard testimony from the Alaska Court System and                                                                  
the Alaska Judicial Council and the bill was held in Committee.                                                                 
                                                                                                                                
HB 72 - ASST.ADJUTANT GEN.: MISSILE/SPACE DEFENSE                                                                               
                                                                                                                                
After brief debate the bill was reported from Committee.                                                                        
                                                                                                                                
                                                                                                                                
CS FOR SENATE BILL NO. 123(TRA)                                                                                                 
"An Act relating to legislative approval for the design and                                                                     
construction  of facilities of the  Alaska Railroad Corporation  and                                                            
railroad line realignment and railroad corridor projects of the                                                                 
Alaska Railroad Corporation."                                                                                                   
                                                                                                                                
                                                                                                                                
SENATOR DRUE  PEARCE, sponsor of SB  123, indicated that  they had a                                                            
work draft before them.                                                                                                         
                                                                                                                                
Senator Leman  moved to adopt the  committee substitute (CS)  for SB
123, 22-LS0522\P, Utermohle, 04/10/01, as a work draft.                                                                         
                                                                                                                                
Co-Chair Kelly asked if there were any objections.                                                                              
                                                                                                                                
There were no objections and Version P was adopted.                                                                             
                                                                                                                                
Senator  Pearce indicated  that Version P  changed dramatically  the                                                            
direction  that she was going  in terms of  approval of projects  on                                                            
the facilities  that the railroad would be building.   She explained                                                            
that  the  CS would  require  the  railroad  corporation  to  obtain                                                            
legislative  approval for  the program of  projects, which  were the                                                            
lists of federally  funded projects required by the  federal transit                                                            
administration  and  the federal  highway  administration.   The  CS                                                            
represented  the  collaborative   effort  between  herself  and  the                                                            
railroad,  which  would  require  approval  for  major construction                                                             
projects  while  excluding   regular  maintenance  projects,   minor                                                            
construction  and  realignment   project  and  projects  outside  of                                                            
communities  that were entirely on  federal lands.  She pointed  out                                                            
that the bill  required the railroad  board of directors  to present                                                            
their program  to the legislature  on the first day of each  regular                                                            
session; that  program would be referred  formerly to the  House and                                                            
Senate  Finance  Committees  for review.    She indicated  that  the                                                            
legislature would be able  to disapprove, by law, the expenditure of                                                            
federal funds  for a project  during the first  60 days of  session.                                                            
She noted  that failure of  the legislature  to disapprove  would be                                                            
recognized as approval  for the expenditure of funds.  She commented                                                            
that  the process  was very  much like  that of  the Local  Boundary                                                            
Commission.                                                                                                                     
                                                                                                                                
Senator  Pearce  further stated  that  the  bill was  introduced  in                                                            
response to the  Alaska Railroad Corporation's multi-million  dollar                                                            
rail station  project at  the Ted Stevens  International Airport  in                                                            
Anchorage.   She  pointed  out  that the  railroad  received  direct                                                            
federal appropriations  for that project.  She indicated  that there                                                            
was no  input  or coordination  with the  legislature  prior to  the                                                            
project and,  more importantly, there  was no public review  process                                                            
in Alaska  at any level  before the  project was  begun.  She  noted                                                            
that  the  project   would  impact  a  large  number   of  Anchorage                                                            
residents.    She  said that  there  were  also  concerns  with  the                                                            
feasibility and  economic practicality of the project;  the original                                                            
appropriation  for the terminal was $28 million and  the realignment                                                            
project was expected to  cost $18 million.  She pointed out that the                                                            
market  analysis  did  not  support  spending  $46  million  on  the                                                            
project.    She believed,  in  response  to the  concerns  with  the                                                            
Anchorage  rail station, that  they should  require the railroad  to                                                            
obtain legislative approval for future projects.                                                                                
                                                                                                                                
[Note:  Microphones  inoperable for  Co-Chair Kelly, Senator  Leman,                                                            
Co-Chair Donley, Senator Green and Senator Austerman]                                                                           
                                                                                                                                
Co-Chair Kelly  referred to the CS with a question  [exact statement                                                            
inaudible].                                                                                                                     
                                                                                                                                
Senator  Pearce pointed  out that  on page  2 of the  CS there  were                                                            
exceptions  that did not apply to  the subsection; those  being that                                                            
the facility  construction  cost  be less  than $5  million and  the                                                            
track  realignment  construction  cost  be less  than  $10  million.                                                            
Therefore, there were exemptions for the smaller projects.                                                                      
                                                                                                                                
Senator Olson understood  where the concerns were toward the current                                                            
projects,  but  if they  looked  at  the long-term  effects  of  the                                                            
increased traffic  through the Anchorage  international airport  how                                                            
were they  going to accommodate  for the increase  in the amount  of                                                            
people traveling nowadays without a rail facility.                                                                              
                                                                                                                                
Senator  Pearce pointed  out  that the  Anchorage  airport  terminal                                                            
project was going  to go forward.  She noted that  Europe did have a                                                            
much better rail system.   Unfortunately, in Anchorage they would be                                                            
held back  because the  track would  only go north  and south.   She                                                            
maintained  that in  the United  States  while the  market  analysis                                                            
spoke about cities where  there was a lot of commuter traffic to and                                                            
from airports  every city  where it had been  successful was  a city                                                            
with  millions  of people.    She  noted that  a  city the  size  of                                                            
Anchorage  would  not  have  the  population   to support   constant                                                            
commuter service.                                                                                                               
                                                                                                                                
Senator  Wilken wondered  what Senator  Pearce's  intent was if  the                                                            
project  construction costs  were larger  than $10  million and  the                                                            
legislature were to disprove it.                                                                                                
                                                                                                                                
Senator Pearce  indicated that the railroad would  have to readdress                                                            
the  project  and the  concerns.    She  did not  believe  that  the                                                            
legislature would turn  down a project unless there was an outcry by                                                            
the people  in the locality of where  the project would take  place.                                                            
She stressed that it would  be very difficult to ask the legislature                                                            
to act within  60 days and reminded the Committee  that the Governor                                                            
could always  veto the  bill.  Therefore,  they  would have  to have                                                            
two-thirds of the legislature  fighting against a project before one                                                            
would actually  be turned down.  She believed that  it was important                                                            
for the  railroad to  be required  to come before  an elected  body,                                                            
like the legislature,  for the purpose  of bringing the people  into                                                            
the process and  assist the railroad in being more  cognizant of the                                                            
issues.                                                                                                                         
                                                                                                                                
Senator Wilken  voiced his  appreciation for  the changes that  were                                                            
                                th                                                                                              
made.  He wondered  if on the 58   day the legislature  were to turn                                                            
down a major project  whether the railroad would have  to wait until                                                            
the next session to move forward on the project.                                                                                
                                                                                                                                
Senator Pearce replied, "Yes.  For construction."                                                                               
                                                                                                                                
Senator Wilken  clarified that they  would not have another  look at                                                            
it until the next session.                                                                                                      
                                                                                                                                
Senator Pearce  explained that the  legislature would authorize  the                                                            
use of federal  funds exactly like  they did with the Department  of                                                            
Transportation  and  Public  Facilities  on  building  roads.    She                                                            
predicated  that the minute the railroad  saw enough concern  with a                                                            
project they would be working with the legislature.                                                                             
                                                                                                                                
Co-Chair Kelly [indiscernible].                                                                                                 
                                                                                                                                
Senator Pearce agreed with  Senator Kelly.  She added that in seeing                                                            
the ideas of  the railroad for the  future and their opportunity  to                                                            
receive money from the  federal government it would not surprise her                                                            
to see the railroad  come to the legislature for help  with matching                                                            
funds,  because most  of the federal  programs  do require  matching                                                            
funds.  She pointed  out that the railroad had matched  dollars over                                                            
the  years,  but  if  they were  handed  $100  million  for  a  huge                                                            
realignment  she  did not  see how  they  would come  up  with a  20                                                            
percent match.  She believed  that the legislature would become more                                                            
active in railroad expansion.                                                                                                   
                                                                                                                                
Senator  Green wondered  if the  language  on page 2,  line 4  would                                                            
apply to the Mat-Su Borough.                                                                                                    
                                                                                                                                
Senator Pearce  understood that boroughs count as  communities.  She                                                            
clarified  that if they allocated  state funds  for a federal  match                                                            
than that would be considered approval.                                                                                         
                                                                                                                                
Senator  Green indicated  that she  was not sure  what the  language                                                            
stated exactly, but that  the money was appropriated as leverage for                                                            
federal money.   She wondered if they  would have to wait  an entire                                                            
session for that approval.                                                                                                      
                                                                                                                                
Senator Pearce  referred to  page one of the  bill on the bottom  of                                                            
the page and indicated  that if a project were substantially changed                                                            
then the  railroad would  have to come back  to the legislature  for                                                            
approval.                                                                                                                       
                                                                                                                                
Senator  Green requested  clarification that  the project would  not                                                            
have  been approved.    She pointed  out that  there  were miles  of                                                            
railroad to interconnect  and wondered if those projects  would fall                                                            
under the requirement for additional legislative approval.                                                                      
                                                                                                                                
Senator Pearce  answered probably,  because in  order to get  on the                                                            
federal  list for  projects  they would  have  to come  back to  the                                                            
legislature.  She assumed  that the project would have to go through                                                            
the process  at the federal  level already.   She further  clarified                                                            
that if  a project  wanted to receive  federal  funds then it  would                                                            
have to appear  on the program at  some point and the first  time it                                                            
appeared  there  with  construction  money  would  be the  year  for                                                            
legislative approval.                                                                                                           
                                                                                                                                
Senator  Leman  seemed  to  him that  if  the  legislature  were  to                                                            
disapprove,  by law,  then the  legislature could  also approve,  by                                                            
law,  if there  were a  change  in the  project sometime  after  the                                                            
disapproval.   He clarified that it could be during  the rest of the                                                            
regular session or even  during a special session rather than on the                                                            
first day of  the next session and  the legislature would  not be in                                                            
violation.                                                                                                                      
                                                                                                                                
Senator Pearce  agreed, but  believed that  it could not be  through                                                            
the capital budget process,  rather there would have to be an actual                                                            
law passed.                                                                                                                     
                                                                                                                                
Senator Leman agreed.                                                                                                           
                                                                                                                                
Senator Pearce reiterated  that they could not get to it through the                                                            
Legislative Budget and Audit process.                                                                                           
                                                                                                                                
Senator Leman interpreted it the same way.                                                                                      
                                                                                                                                
Senator  Pearce  noted  that when  they  ran  into problems  at  the                                                            
legislative  level there would be  enough scurrying about  that some                                                            
accommodation would be found before the end of session.                                                                         
                                                                                                                                
Senator  Leman agreed.   He  questioned  whether  the definition  of                                                            
"substantial"  with  regards  to  the  pipeline  ride-of-way   would                                                            
concern them or the railroad.                                                                                                   
                                                                                                                                
Senator Pearce  stated that she was comfortable with  the definition                                                            
of "substantial"  provided by Mr. Utermohle.  She  explained that if                                                            
the railroad had funds  to build to Point Mackenzie and they decided                                                            
to  build   to  Skwentna   instead  that   would  be  considered   a                                                            
"substantial"  change.   On the other  hand, she  noted that  if the                                                            
railroad had  to change a route a  little bit to accommodate  a wolf                                                            
den then that  would not be considered a "substantial"  change.  She                                                            
reminded the Committee  that in federal law if those projects change                                                            
then there would need to be a reauthorization process.                                                                          
                                                                                                                                
Senator  Leman clarified  that  in federal  regulation  there  would                                                            
probably be a definition of "substantial."                                                                                      
                                                                                                                                
Senator Pearce  said that she was not sure if it was  defined or not                                                            
in the federal  regulations.  She did not expect the  railroad to go                                                            
outside  of what they  intended.   She noted that  the railroad  did                                                            
have a lot  of land and it was hard  to say what they might  come up                                                            
with in terms of development.                                                                                                   
                                                                                                                                
Senator Ward commented  that the Alaska railroad was  an interesting                                                            
entity.   He wondered why  they would pass  this legislation  rather                                                            
than putting the railroad under the executive budget act.                                                                       
                                                                                                                                
Senator  Pearce parlayed  that this  would be a  "slap on the  hand"                                                            
whereas that would be a "sledgehammer."                                                                                         
                                                                                                                                
Senator Ward  questioned the  specifics of  it and wondered  if this                                                            
legislation  would impede  the railroad's  ability  to do what  they                                                            
felt was best.                                                                                                                  
                                                                                                                                
Senator Pearce  answered that sure it would impede  their ability to                                                            
some extent, but not much.   She believed that it was something that                                                            
the railroad should  do and she worked with the railroad  to come up                                                            
with something  that they were willing to do.  She  pointed out that                                                            
the  railroad  was an  asset  of the  state  and all  Alaskans  were                                                            
shareholders of  the railroad.  She indicated that  if they want the                                                            
railroad to be  able to act like a business than putting  them under                                                            
the executive budget act  would not be the way to go.  She said that                                                            
she did not feel that the government acted well as a business.                                                                  
                                                                                                                                
JOHN BINKLEY,  Chairman of the Board,  Alaska Railroad Corporation,                                                             
testified via teleconference  from Fairbanks, thanked Senator Pearce                                                            
for  the CS,  Version P,  and  indicated that  it  was a  tremendous                                                            
improvement  to the CS that  came out of  the Senate Transportation                                                             
Committee.    He pointed  out  that  it  was an  effort  on  Senator                                                            
Pearce's  part  out  of frustration   that  she had  felt  with  the                                                            
construction  of  the  project  at  the  Ted Stevens  International                                                             
Airport in Anchorage.   He gave some background from  the railroad's                                                            
point of view on that project.   He explained that the Department of                                                            
Transportation  and  Public  Facilities  approached  them  when  the                                                            
department began the reconstruction  of the terminal at the airport.                                                            
The airport  had dictated  that if the railroad  wanted to  maintain                                                            
their existing  line than they had  to be apart of the project.   He                                                            
said that the intent of  the railroad was to preserve that corridor.                                                            
He urged  that they  tried to  communicate with  the legislature  on                                                            
their  projects  and never  did  get  a huge  reaction  or  negative                                                            
reaction.   He noted that they did  as much as they could  to inform                                                            
the public  about the project.  He  referred to the additional  cost                                                            
of the  rails going  into the airport  and noted  that it was  being                                                            
looked at for  future projects if  there was a tremendous  amount of                                                            
use of those  rails.  He  thought that if  they got to the  point to                                                            
spend additional money  to realign the rail it would be a tremendous                                                            
success.   He said  that  they hoped  there would  be acceptance  of                                                            
commuter  rail in the Anchorage  area and  that they would  increase                                                            
the number of trains going  in and out of the airport.  He commented                                                            
that he would see that as a success if it indeed were to happen.                                                                
                                                                                                                                
Mr. Binkley continued that  two of the key pieces in the legislation                                                            
were  that  it forced  a  close  working  relationship  between  the                                                            
railroad and the Department  of Transportation and Public Facilities                                                            
and secondly, that the  railroad would have autonomy.  He noted that                                                            
the number  one  consideration  was safety  and number  two was  the                                                            
customer.   He  expressed  that where  there  was concern  with  the                                                            
original CS  from the Senate Transportation  Committee with  regards                                                            
to it crossing the line  with regards to the legislature becoming an                                                            
integral part  of the decisions of  the railroad.  He again  thanked                                                            
Senator Pearce for her work on the legislation.                                                                                 
                                                                                                                                
Senator Leman  moved to  report CS SB 123,  22-LS0522\P,  Utermohle,                                                            
4/10/01, from the Committee.                                                                                                    
                                                                                                                                
There was no objection and the bill was reported from Committee.                                                                
                                                                                                                                
                                                                                                                                
AT EASE 9:49 AM/9:51 AM                                                                                                         
                                                                                                                                
                                                                                                                                
CS FOR SENATE JOINT RESOLUTION NO. 22(JUD)                                                                                      
Proposing an  amendment to the Constitution  of the State  of Alaska                                                            
relating  to the  retention  elections for  justices  of the  Alaska                                                            
Supreme Court and judges of the superior court.                                                                                 
                                                                                                                                
                                                                                                                                
STEPHANIE  COLE,  Administrative   Director,  Alaska  Court  System,                                                            
testified  via teleconference  from  Anchorage,  indicated that  the                                                            
Alaska  Court  System  concurred  with  the position  taken  by  the                                                            
judicial council.  She  stated that the Alaska Court System believed                                                            
that  the proposed  shortening  of  the  periods  between  retention                                                            
elections  in the  resolution  would have  a serious  effect on  the                                                            
quality of justice  in the State of Alaska.  She explained  that the                                                            
merit selection  and retention system  currently in place  in Alaska                                                            
was  cited  quite  often  as  a  model  system  balancing   judicial                                                            
independence  and judicial  accountability.   It  was a system  that                                                            
preserved  the judges  ability  to make  decisions  impartially  and                                                            
without  undue political  pressure  against the  public's rights  to                                                            
hold the judges  accountable.  She  said that they really  felt that                                                            
judicial accountability  was enormously important  and was in no way                                                            
inconsistent with judicial independence.                                                                                        
                                                                                                                                
Ms.  Cole further  explained  that  the three  aspects  of  judicial                                                            
accountability    were    political   accountability,     decisional                                                            
accountability  and behavioral accountability.  She  noted that each                                                            
of those aspects was important  and each served a different purpose.                                                            
She stated  that political accountability  was accomplished  through                                                            
the retention election  process, which allowed the public to approve                                                            
judges.   Decisional  accountability  was  related to  the issue  of                                                            
whether a judge  was correct or incorrect  in a particular  decision                                                            
and it was  accomplished through the  appellate process as  the case                                                            
went up for appeal.  Behavioral  accountability would come into play                                                            
when judicial  misconduct was at issue  and it was provided  through                                                            
the judicial  discipline process.   She warned that when  they start                                                            
proposing to  shorten retention terms  in the way that SJR  22 would                                                            
do then they create a situation  where they start blurring the lines                                                            
between political  accountability  and decisional accountability  to                                                            
the detriment  of  the justice  system.   She pointed  out that  the                                                            
current retention  terms were in the  mainstream of retention  terms                                                            
around the country.                                                                                                             
                                                                                                                                
Ms. Cole further stated  that while their role as legislators was in                                                            
large  part  to  reflect   the  will  of  the  majority   and  their                                                            
constituents,  the role  of the judge  was to  protect the  minority                                                            
against  which the  will of  the majority  should never  be able  to                                                            
prevail.  She  indicated that the judge must apply  the law to a set                                                            
of facts without  regard to the political atmosphere  or the will of                                                            
the majority.   She noted that this was very difficult  and often an                                                            
unpopular  task, but  it was  enhanced  by the current  system  that                                                            
provided some protection  against a judge being punished politically                                                            
for  a  particular  decision.    She  urged  that  when  they  start                                                            
shortening  the period between retention  elections then  it becomes                                                            
more  likely  that  political  campaigns   would  be  waged  against                                                            
individual  judges  because of  a single  unpopular  decision.   She                                                            
explained that as campaigns  were mounted against judges then judges                                                            
could and would  respond with counter campaigns.   She noted that it                                                            
had become a serious public  concern throughout the country, because                                                            
it could  compromise  a judge's  ability  to rule  neutrally and  be                                                            
perceived as neutral.                                                                                                           
                                                                                                                                
                                                                                                                                
SFC 01 # 73, Side B 10:01 AM                                                                                                    
                                                                                                                                
                                                                                                                                
Ms. Cole  continued that  judges needed to  be evaluated at  regular                                                            
intervals  about how  they handled  all their cases  instead  of how                                                            
they handled  one or two  highly-visible cases.   She stressed  that                                                            
the  legal  system  commanded  allegiance  only  when  it  commanded                                                            
respect and it only commanded  respect when the public believed that                                                            
the  judges were  neutral.   She  expressed  grave concern  that  by                                                            
shortening  the period  between retention  elections  it would  also                                                            
discourage  qualified applicants  from seeking  judicial  positions.                                                            
She  noted that  judicial  salaries were  currently  dropping.   She                                                            
concluded that the Alaska Court System was opposed to SJR 22.                                                                   
                                                                                                                                
Senator Ward requested  clarification that Ms. Cole  had stated that                                                            
the role of  the state was to protect  the minority and the  role of                                                            
the legislature was to protect the majority.                                                                                    
                                                                                                                                
Ms. Cole clarified that,  generally, the role of the legislature was                                                            
to protect the rights of  the constituents or the majority, whereas,                                                            
the  primary role  of  a judge  was  to protect  the  rights of  the                                                            
minority  against  which  the  will of  the  majority  should  never                                                            
prevail.   She further clarified  that she  had not intended  to say                                                            
that the  legislature  did not  represent the  minority, but  rather                                                            
that it  was the  role of  the judge  to protect  the rights of  the                                                            
minority against infringements.                                                                                                 
                                                                                                                                
Senator  Ward  spoke  to the  sovereign  rights  of  the  individual                                                            
regardless of whether they were in the minority or the majority.                                                                
                                                                                                                                
Senator Leman  referred to Ms. Cole's  comment about Alaska  being a                                                            
model of the system.  He  argued that it was not really a model that                                                            
would get the most qualified judges.                                                                                            
                                                                                                                                
WILLIAM   COTTON,    Alaska   Judicial   Council,   testified    via                                                            
teleconference   from  Anchorage,   responded  to  Senator   Leman's                                                            
comments.   He  stressed  that almost  every  decision  made by  the                                                            
judicial council was unanimous.   He stated that the council opposed                                                            
SJR  22, because  they believed  it  would be  counterproductive  to                                                            
their goal  of encouraging judicial  excellence.  He echoed  some of                                                            
Ms. Cole's  comments.  He indicated  that the council urged  them to                                                            
think long  and hard before  upsetting the  system and vote  against                                                            
SJR 22.                                                                                                                         
                                                                                                                                
Co-Chair Donley  mentioned that 20 other states had  merit selection                                                            
retention laws  similar to Alaska.  He noted that  three of those 20                                                            
states  had  the same  retention  terms  proposed  by  SJR  22.   He                                                            
wondered if  that was also Mr. Cotton's  understanding.   He pointed                                                            
out that in Kansas  each community could choose whether  or not they                                                            
wanted to conduct a direct  election or use an appointment retention                                                            
system.   He said  that it  was a 50/50  split statewide.   He  also                                                            
referred to  Oklahoma and indicated  that two of the 20 states  that                                                            
allegedly had the same  system as Alaska, in fact, had a significant                                                            
number of their judges elected.                                                                                                 
                                                                                                                                
                                                                                                                                
AT EASE 10:19 AM/10:24 AM                                                                                                       
                                                                                                                                
                                                                                                                                
Mr. Cotton  explained that many of  the states nationwide  were very                                                            
different from Alaska in  that rather than having a statewide system                                                            
they had municipal courts,  county courts and state courts.  He said                                                            
that the  courts in the United  States had  three basic systems:   a                                                            
merit selection  system, similar to Alaska; appointed  system, where                                                            
the Governor appoints judges; and an elected system.                                                                            
                                                                                                                                
Co-Chair  Donley pointed  out  that they  did have  a unified  court                                                            
system.   He indicated  that  other states  had  the flexibility  to                                                            
select other systems.   He noted that it was not accurate to say the                                                            
other  20 states  used a  retention system.   He  wondered what  the                                                            
criteria were on the surveys.                                                                                                   
                                                                                                                                
Mr.  Cotton   indicated  that  they   did  report  all  the   survey                                                            
information.  He noted  that they also reported detailed demographic                                                            
information.   He said that they promised  confidentiality  in order                                                            
to get accurate information.                                                                                                    
                                                                                                                                
Co-Chair Donley  wondered if all the responses were  included in the                                                            
information given to the public.                                                                                                
                                                                                                                                
Mr. Cotton replied that  the information was disseminated in several                                                            
different ways.   He noted that everyone  that responded  got his or                                                            
her numbers reported.                                                                                                           
                                                                                                                                
Co-Chair  Donley  wondered if  the distinction  between  those  with                                                            
direct  personal experience  and  those with  just  an opinion  were                                                            
carried over into the recommendation process.                                                                                   
                                                                                                                                
Mr. Cotton  explained that they did  report the different  levels of                                                            
professional experience.                                                                                                        
                                                                                                                                
Judge  Robinowitz, supreme  justice,  Court of  Alaska, pointed  out                                                            
that what  they were  dealing with  was one issue  and that  being a                                                            
periodic  evaluation  of  judges under  a  merit  selection  system.                                                            
There use to be no accountability  and they rejected that and wanted                                                            
the judiciary  to be accountable and  then a judge would  be elected                                                            
on a partisan ballot and  it was too compromising to the judges.  He                                                            
explained that  they came up with a periodic retention  and election                                                            
system.  He  asked the Committee if  it has worked.  He assured  the                                                            
Committee that the judges  were aware of the accountability that was                                                            
built into  Article 4 of  the Constitution  of the State of  Alaska.                                                            
He said  that his impression  was that the  system was working.   He                                                            
urged that they not change  it if it was working.  He said that sure                                                            
over 20 or 30  years they would get some bad opinions,  but he noted                                                            
that the thousands  of opinions that stand up under  scrutiny were a                                                            
service to the  system.  He opined that if they truncate  every term                                                            
into a four to  six year term they would dilute the  voters analysis                                                            
of a judges particular  record.  He pointed out that Alaska was able                                                            
to  get  more  information  to  the voter.    He  pleaded  with  the                                                            
Committee that the issue  was independence versus accountability and                                                            
they were dealing with  the Constitution of the State of Alaska.  He                                                            
stressed that they should not change something that was working.                                                                
                                                                                                                                
Senator  Donley  wondered   what  the  debate  was  in  forming  our                                                            
government.                                                                                                                     
                                                                                                                                
Judge Rabinowitz  recollected  that ten years  and six years  struck                                                            
the  appropriate  balance  on  undue  pressure  on  judges  and  the                                                            
people's  right to exercise  a check and  accountability on  judges.                                                            
These  were the  appropriate  time  frames.   In  1955  this was  an                                                            
experiment  and  he  noted  that  the  Constitution   was  still  an                                                            
experiment.   He pointed out that  what they had to do in  the court                                                            
system was gradually come  into maturation.  He stated that the test                                                            
of  time  has worked.    He  said  that they  needed  to  strike  an                                                            
appropriate balance  between accountability and allowing  the judges                                                            
to perform their judicial functions.                                                                                            
                                                                                                                                
Co-Chair Donley wondered  what the difference was in how society and                                                            
laws had evolved  since the 1950s.  He suggested that  it would have                                                            
been difficult  for the people in  the 1950s to have envisioned  how                                                            
the courts would have evolved.                                                                                                  
                                                                                                                                
Judge Rabinowitz  commented that this  was almost Political  Science                                                            
101.  He  explained that  they were a passive  institution  that did                                                            
not initiate  litigation.  He said  that they might go four  or five                                                            
years  without  seeing  a  case at  the  appellate  level  that  had                                                            
statewide  appeal.   With regards  to the  question  of whether  the                                                            
courts have become  more radical he suggested that  they take a look                                                            
at Marbury  (ph) vs. Madison.   He explained  that out of the  three                                                          
branches of government  the judiciary was the one  that was going to                                                            
decide what was constitutional  and would bind the three branches of                                                            
government.  He  urged that this was going on from  the inception of                                                            
government  and over time  it had  proven to work.   He pointed  out                                                            
that they had to draft  the Constitution in broad terms and they hit                                                            
on a  brilliant solution.   He said  that he did  not feel it  was a                                                            
reflection of an activist  court.  He would not label his colleagues                                                            
as activists.                                                                                                                   
                                                                                                                                
Co-Chair  Donley  wondered  what court  changed  the  standards  for                                                            
public interest  litigation  and the professed  intent of the  court                                                            
was  to promote  more cases  coming  to them  and  more involved  in                                                            
social issues.                                                                                                                  
                                                                                                                                
Judge Rabinowitz advised  that he had never seen any indication over                                                            
the years  that a justice  had a political  or philosophical  agenda                                                            
imposed  on the court.   Believe it  or not they  took the cases  as                                                            
they came and  no one dominated the  court.  He reiterated  that the                                                            
system was working.                                                                                                             
                                                                                                                                
LES GARA,  testified via  teleconference  from Anchorage,  expressed                                                            
that in 1955  the founding fathers  and mothers worked to  create as                                                            
credible a judiciary  as possible.  He urged that  they came up with                                                            
for this  nation a model  as an impartial  judiciary.  He said  that                                                            
they  came  up with  the  best  system  yet.   He  noted  that  they                                                            
considered  what they did  and they debated  what they did  and they                                                            
decided  that reducing  the  retention  terms was  a bad  idea.   He                                                            
referred to  the idea that the judges  currently were more  radical.                                                            
He pointed  out that  in the  1950s there  was the  same cries  that                                                            
judges were radical.                                                                                                            
                                                                                                                                
                                                                                                                                
SFC 01 # 74, Side A 10:55 AM                                                                                                    
                                                                                                                                
                                                                                                                                
Mr. Gara noted  that the work done in 1955 was good  work and agreed                                                            
with  Judge Rabinowitz  that  there has  been nothing  to  encourage                                                            
changing  it now.    He urged  the Committee  to  go  back and  read                                                            
through the constitutional debates.                                                                                             
                                                                                                                                
Co-Chair  Kelly frustrated  about  some of  the testimony  that  the                                                            
deference  to the  constitutional delegates  of 1955  that the  same                                                            
people say  that the Constitution  was a living document.   Ignoring                                                            
the  fact   that  they  put  for   us  a  method  of  changing   the                                                            
constitution.   He pointed out that  the delegates in 1955  probably                                                            
never imaged that  the courts would be taking the  kind of liberties                                                            
that they are taking currently.   Doubt that they ever imagined that                                                            
the courts would be taking  the kind of freedoms that they have been                                                            
taking.   The right  of appropriation  belongs  to the legislature.                                                             
Only convenient when it suits their purposes.                                                                                   
                                                                                                                                
Bruce Weyrauch, President,  Alaska Bar Association, believed that an                                                            
independent  form of judiciary is  critical to the government.   The                                                            
more the political  process moves the retention level  down the less                                                            
they could provide the clients in the private sector.                                                                           
                                                                                                                                
[Heard and Held]                                                                                                                
                                                                                                                                
                                                                                                                                
AT EASE 10:58 AM/10:59 AM                                                                                                       
                                                                                                                                
                                                                                                                                
HOUSE BILL NO. 72 am                                                                                                            
"An Act  relating to  an assistant  adjutant general  for space  and                                                            
missile  defense  in  the  Department  of  Military   and  Veterans'                                                            
Affairs."                                                                                                                       
                                                                                                                                
Co-Chair  Kelly  pointed out  that  it was  a state  position  using                                                            
federal funds.                                                                                                                  
                                                                                                                                
                                                                                                                                
CARROL  CAROL,   Department  of  Military   and  Veterans   Affairs,                                                            
explained that  a position of this kind would give  Alaska forefront                                                            
in the decision making  process and the ability to hire someone from                                                            
Alaska.  She agreed that it was completely federally funded.                                                                    
                                                                                                                                
Co-Chair  Donley  wondered if  she  had any  objection  to a  5-year                                                            
sunset on the position.                                                                                                         
                                                                                                                                
Ms. Carol did  not have an objection,  but believed that  five years                                                            
would be an appropriate time.                                                                                                   
                                                                                                                                
Co-Chair  Donley noted that  five years was  a reasonable amount  of                                                            
time.                                                                                                                           
                                                                                                                                
Co-Chair  Kelly asked  Co-Chair  Donley if  he wanted  to propose  a                                                            
conceptual amendment.                                                                                                           
                                                                                                                                
Co-Chair Donley  moved a conceptual  amendment to add a five-sunset                                                             
provision to the position.                                                                                                      
                                                                                                                                
There was no objection  and the conceptual amendment #1 was adopted.                                                            
                                                                                                                                
Senator Wilken made a motion to report HB 72, 22-GH1055\A.a, as                                                                 
amended, from Committee.                                                                                                        
                                                                                                                                
Senator Olson wondered if the employee would fill a state position.                                                             
                                                                                                                                
Ms. Carol responded correct.                                                                                                    
                                                                                                                                
Senator Olson wondered if there would be other state employees in                                                               
addition.                                                                                                                       
                                                                                                                                
Ms. Carol replied no.                                                                                                           
                                                                                                                                
Senator Leman wondered if there was any need to have a more                                                                     
immediate effective date.                                                                                                       
                                                                                                                                
Ms. Carol that would be a positive amendment.                                                                                   
                                                                                                                                
Senator Wilken removed his motion to report bill from Committee.                                                                
                                                                                                                                
Senator Leman moved a conceptual amendment for an immediate                                                                     
effective date.                                                                                                                 
                                                                                                                                
Co-Chair Kelly asked if there was any objection.                                                                                
                                                                                                                                
There was no objection and conceptual amendment #2 was adopted.                                                                 
                                                                                                                                
Senator Wilken made a motion to report HB 72, 22-GH1055\A.a, as                                                                 
amended, from Committee with attached fiscal note.                                                                              
                                                                                                                                
There was no objection and the bill was reported from Committee.                                                                
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
Co-Chair Pete Kelly adjourned the meeting at 11:08 AM.                                                                          

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