Legislature(1999 - 2000)

03/29/2000 01:54 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              SENATE JUDICIARY COMMITTEE                                                                                        
                    March 29, 2000                                                                                              
                      1:54 p.m.                                                                                                 
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Senator Robin Taylor, Chairman                                                                                                  
Senator Dave Donley                                                                                                             
Senator John Torgerson                                                                                                          
Senator Johnny Ellis                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
Senator Rick Halford, Vice-Chairman                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
SENATE BILL NO. 294                                                                                                             
"An Act relating to the possession of concealed handguns and to                                                                 
concealed handgun permits."                                                                                                     
     -HEARD AND HELD                                                                                                            
                                                                                                                                
SENATE JOINT RESOLUTION NO. 15                                                                                                  
Proposing amendments to the Constitution of the State of Alaska                                                                 
relating to the appointment and confirmation of supreme court                                                                   
justices and superior court judges and to approval or rejection of                                                              
justices and judges during certain general elections.                                                                           
     -HEARD AND HELD                                                                                                            
                                                                                                                                
SENATE BILL NO. 233                                                                                                             
"An Act relating to priorities, claims, and liens for payment for                                                               
certain medical services provided to medical assistance recipients;                                                             
and providing for an effective date."                                                                                           
     -HEARD AND HELD                                                                                                            
                                                                                                                                
PREVIOUS SENATE COMMITTEE ACTION                                                                                                
                                                                                                                                
SB 294 - No previous action to report.                                                                                          
                                                                                                                                
SJR 15 - No previous action to report.                                                                                          
                                                                                                                                
SB 233 - See HESS minutes dated 2/16/00.                                                                                        
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
Mr. Jim Pound                                                                                                                   
Staff to Senator Taylor                                                                                                         
State Capitol Building                                                                                                          
Juneau, Alaska 99801                                                                                                            
POSITION STATEMENT:      Presented SB 294                                                                                       
                                                                                                                                
Mr. Victor Gunn                                                                                                                 
1711 Glacier Highway                                                                                                            
Juneau, Alaska 99801                                                                                                            
POSITION STATEMENT:      Supports SB 294                                                                                        
                                                                                                                                
Mr. Mike Pauley                                                                                                                 
Staff to Senator Leman                                                                                                          
State Capitol Building                                                                                                          
Juneau, Alaska 99801                                                                                                            
POSITION STATEMENT:      Testified on SJR 15                                                                                    
                                                                                                                                
Mr. Jon Sherwood                                                                                                                
Department of Health and Social Services                                                                                        
Division of Medical Assistance                                                                                                  
PO Box 110601                                                                                                                   
Juneau, Alaska 99811-0601                                                                                                       
POSITION STATEMENT:      Testified on SB 233                                                                                    
                                                                                                                                
Mr. Tom Boutin                                                                                                                  
Box 35116                                                                                                                       
Juneau, Alaska 99811                                                                                                            
POSITION STATEMENT:      Supports on SB 294                                                                                     
                                                                                                                                
Mr. Brian Judy                                                                                                                  
National Rifle Association                                                                                                      
Address not furnished                                                                                                           
Sacramento, California                                                                                                          
POSITION STATEMENT:      Supports SB 294                                                                                        
                                                                                                                                
Ms. Janie Wineinger                                                                                                             
National Rifle Association                                                                                                      
Address not furnished                                                                                                           
Wasilla, Alaska                                                                                                                 
POSITION STATEMENT:      Supports SB 294                                                                                        
                                                                                                                                
Ms. Lauree Hugonin                                                                                                              
130 Seward, Room 209                                                                                                            
Juneau, Alaska 99801                                                                                                            
POSITION STATEMENT:      Opposed to SB 294                                                                                      
                                                                                                                                
Mr. Elzie Isley                                                                                                                 
Address not furnished                                                                                                           
Ketchikan, Alaska 99901                                                                                                         
POSITION STATEMENT:      Supports SB 294                                                                                        
                                                                                                                                
Lieutenant David Ray Hudson                                                                                                     
Department of Public Safety                                                                                                     
Alaska State Troopers                                                                                                           
5700 East Tudor Road                                                                                                            
Anchorage, Alaska 99501                                                                                                         
POSITION STATEMENT:      Supports SB 294                                                                                        
                                                                                                                                
Mr. Duane Udland                                                                                                                
4501 South Bragaw                                                                                                               
Anchorage, Alaska 99508                                                                                                         
POSITION STATEMENT:      Supports SB 294                                                                                        
                                                                                                                                
Mr. Pat Johnson                                                                                                                 
54540 East End Road                                                                                                             
Homer, Alaska 99603                                                                                                             
POSITION STATEMENT:      Supports SB 294                                                                                        
                                                                                                                                
Ms. Stephanie Cole                                                                                                              
Alaska Court System                                                                                                             
303 K Street                                                                                                                    
Anchorage, Alaska 99501                                                                                                         
POSITION STATEMENT:      Opposes SJR 15                                                                                         
                                                                                                                                
Mr. Bill Cotton                                                                                                                 
Alaska Judicial Council                                                                                                         
1029 West 3rd, Suite 201                                                                                                        
Anchorage, Alaska 99501                                                                                                         
POSITION STATEMENT:      Opposes SJR 15                                                                                         
                                                                                                                                
Justice Jay Rabinowitz                                                                                                          
PO Box 22528                                                                                                                    
Juneau, Alaska 99802                                                                                                            
POSITION STATEMENT:      Testified on SJR 15                                                                                    
                                                                                                                                
Mr. Les Gara                                                                                                                    
1242 West 10th Avenue                                                                                                           
Anchorage, Alaska 99501                                                                                                         
POSITION STATEMENT:      Opposes SJR 15                                                                                         
                                                                                                                                
Mr. David Bundy                                                                                                                 
911 West 8th Avenue                                                                                                             
Anchorage, Alaska 99501                                                                                                         
POSITION STATEMENT:      Opposes SJR 15                                                                                         
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 00-17, SIDE A                                                                                                              
Number 001                                                                                                                      
                                                                                                                                
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to                                                                 
order at 1:54 p.m.  Present were SENATOR TORGERSON, SENATOR HALFORD                                                             
AND CHAIRMAN TAYLOR.  The first order of business to come before                                                                
the committee was SB 294.                                                                                                       
                                                                                                                                
                                                                                                                                
           SB 294-CONCEALED HANDGUN PERMIT AMENDMENTS                                                                           
                                                                                                                                
MR. JIM POUND, staff to Chairman Taylor, made the following                                                                     
comments:                                                                                                                       
                                                                                                                                
Alaska's concealed carry law has been one of the most successful                                                                
programs in the United States.  That success is based, in part, on                                                              
the original intent of the legislation to allow only knowledgeable,                                                             
law-abiding citizens to obtain state permits to carry concealed                                                                 
handguns.  Although the program has been successful, there are                                                                  
several recurring problems with the implementation and management                                                               
of the program.                                                                                                                 
                                                                                                                                
CSSB 294 proposes statutory changes to improve and streamline the                                                               
process to obtain and renew a concealed handgun permit.  Applicants                                                             
will no longer be required to have a sworn application; permit                                                                  
holders will be allowed to submit their renewal applications 60                                                                 
days prior to expiration, allowing more time to complete the                                                                    
renewal process before the expiration date; a new photograph will                                                               
be required every seven years, instead of every five years as                                                                   
required now and additional thumb prints will no longer be required                                                             
during the renewal process.                                                                                                     
                                                                                                                                
The bill also makes changes to some of the training and education                                                               
statutes, streamlining the process and making reciprocity with                                                                  
other states easier.  An applicant will be required to provide                                                                  
evidence of completion of a handgun or firearms safety course, but                                                              
it will eliminate the more subjective requirement by eliminating                                                                
the specific statutory definition of "competence," which is causing                                                             
problems with reciprocity in other states.  Alaska State Troopers                                                               
will be authorized by statute to help teach handgun courses, which                                                              
may generate additional revenue.                                                                                                
                                                                                                                                
CSSB 294 makes the statute apply equally to all citizens statewide                                                              
and clarifies the standards for recognition of permits from other                                                               
states.                                                                                                                         
                                                                                                                                
SENATOR DONLEY moved to adopt the proposed committee substitute for                                                             
SB 294, work draft 1-LS1543\G, Luckhaupt, dated 3/24/00.  There                                                                 
being no objection, CSSB 294 was adopted as the working draft.                                                                  
                                                                                                                                
MR. VICTOR GUNN, speaking on his own behalf as a retired deputy                                                                 
chief of police, said he endorses all of the changes encompassed in                                                             
CSSB 294.  There is pending federal legislation that will allow law                                                             
enforcement officers to carry concealed handguns out of their                                                                   
jurisdiction, it also allows qualified retired law enforcement                                                                  
officers the opportunity to carry concealed handguns without a                                                                  
permit. Mr. Gunn suggested the committee incorporate some of this                                                               
language into a conceptual amendment for CSSB 294.                                                                              
                                                                                                                                
Number 423                                                                                                                      
                                                                                                                                
SENATOR DONLEY said he does not support allowing retired law                                                                    
enforcement officers the opportunity to carry a concealed handgun                                                               
without a permit, but he does not have a problem with active law                                                                
enforcement officers carrying concealed handguns.                                                                               
                                                                                                                                
MR. GUNN responded that retired police officers have had a                                                                      
tremendous amount of firearm and classroom experience on the use of                                                             
deadly force, and while on the job they are required to qualify                                                                 
annually, at a minimum.                                                                                                         
                                                                                                                                
CHAIRMAN TAYLOR moved the conceptual amendment to allow existing                                                                
law enforcement officers to carry concealed handguns.  There being                                                              
no objection, the conceptual amendment was adopted.                                                                             
                                                                                                                                
CHAIRMAN TAYLOR also expressed his concern about retired police                                                                 
officers not having background checks before being given a permit.                                                              
                                                                                                                                
CHAIRMAN TAYLOR announced he would like to adopt the committee                                                                  
substitutes for SJR 15 and SB 233 before committee members had to                                                               
leave for other meetings, so CSSB 294 was set aside until later in                                                              
the meeting.                                                                                                                    
                                                                                                                                
            SJR 15-CONST. AM: APPOINTMENT OF JUDGES                                                                             
                                                                                                                                
MR. MIKE PAULEY, staff aid to Senator Leman, stated there have been                                                             
several legislative proposals over the last several years to reform                                                             
Alaska's judiciary, and while they have varied in the particulars,                                                              
all of the reform proposals have stemmed from the common premise                                                                
that the Alaska judicial system is broken.  The problem is that                                                                 
there are judges who are not interpreting the law, but actually                                                                 
writing the law.  They are examining the laws of the constitution                                                               
not on the basis of original intent or long standing legal                                                                      
tradition but based on personal bias.  Many Alaskans have taken                                                                 
comfort in the fact that erroneous decisions can be overridden                                                                  
through the process of a constitutional amendment.   However, that                                                              
process was significantly undermined in the Bess v Ulmer decision                                                               
in which the court prevented Alaskans from voting on a                                                                          
constitutional amendment and edited the language of another.                                                                    
                                                                                                                                
MR. PAULEY said the amendment before the committee proposes modest                                                              
changes to the judicial selection process.  It expands the pool of                                                              
talent from which the governor can make appointments to fill                                                                    
judicial vacancies.  It will require legislative confirmation of                                                                
judicial nominees, and it will provide for more frequent retention                                                              
elections.                                                                                                                      
                                                                                                                                
MR. PAULEY commented that SJR 15 takes a small step towards                                                                     
restoring a system of checks and balances among the three branches                                                              
of government.  The need for this is reflected in a comment by the                                                              
twelfth chief justice of the U.S. Supreme Court, Harlan Fiske                                                                   
Stone, who lived from 1872 to 1946.  Justice Stone observed, "While                                                             
unconstitutional exercise of power by the executive or legislative                                                              
branches of the government is subject to judicial restraint, the                                                                
only check on our own exercise of power is own sense of self                                                                    
restraint."                                                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR commented that the CS only speaks to retention                                                                  
elections and not an expansion of the pool from which Mr. Pauley is                                                             
speaking.                                                                                                                       
                                                                                                                                
Number 823                                                                                                                      
                                                                                                                                
MR. PAULEY clarified he was speaking to the original bill because                                                               
the committee had not adopted the CS.                                                                                           
                                                                                                                                
SENATOR DONLEY moved to adopt CSSJR 15, version 1-LS0596\G,                                                                     
Luckhaupt, dated 3/17/00, having the supreme court subject to                                                                   
retention elections every six years and the superior court subject                                                              
to retention elections every four years.  There being no objection,                                                             
CSSJR 15am was adopted.                                                                                                         
                                                                                                                                
            SB 233-MEDICAL ASSISTANCE:LIENS & CLAIMS                                                                            
                                                                                                                                
SENATOR TORGERSON moved to adopt CSSB 233(JUD), 1-GS2058\D,                                                                     
Lauterbach, dated 3/28/00.  There being no objection, CSSB 233(JUD)                                                             
was adopted.                                                                                                                    
                                                                                                                                
Number 927                                                                                                                      
                                                                                                                                
MR. JOHN SHERWOOD, Department of Health and Social Services (DHSS),                                                             
stated this bill will make two improvements to the medical                                                                      
assistance statute.  It will extend the length of time for                                                                      
providers who have claims for services to Medicaid recipients--from                                                             
six months to one year.  The statute will also allow, if a good                                                                 
cause is found, for filing after the deadline to pay the full                                                                   
amount of the claim instead of 50% of the claim.  The bill will                                                                 
also improve DHSS's ability to recover against third parties where                                                              
medical care has been paid for a Medicaid recipient, and then the                                                               
Medicaid recipient engages in litigation against the insurance                                                                  
company or similar defendant.  SB 233 gives DHSS the right to put                                                               
a lien against these settlements.                                                                                               
                                                                                                                                
CHAIRMAN TAYLOR noted that now that the committee substitutes have                                                              
been adopted and some committee members have left for other                                                                     
meetings, he alone will hear testimony for the three bills before                                                               
the committee.                                                                                                                  
                                                                                                                                
Number 1066                                                                                                                     
                                                                                                                                
           SB 294-CONCEALED HANDGUN PERMIT AMENDMENTS                                                                           
                                                                                                                                
MR. TOM BOUTIN, speaking for himself, stated that this is an                                                                    
excellent program.  Wherever concealed carry has been reviewed, it                                                              
has been found to lower the crime rate, and Alaska's program has                                                                
worked at least as well as any other state.  Mr. Boutin stated he                                                               
supports SB 294.                                                                                                                
                                                                                                                                
Number 1133                                                                                                                     
                                                                                                                                
MR. BRIAN JUDY, Alaska State Liaison for the National Rifle                                                                     
Association (NRA), stated he is speaking on behalf of the more than                                                             
20,000 members of the Alaska NRA.  Mr. Judy made the following                                                                  
comments:                                                                                                                       
                                                                                                                                
The NRA agrees with all of the changes in CSSB 294 and likes the                                                                
fact that more out-of-state permits will be recognized in Alaska.                                                               
A permit holder from another state who is 21 years of age and                                                                   
legally able to own a handgun and who has passed a finger print                                                                 
based background check and who has completed a handgun or firearm                                                               
safety course will qualify.                                                                                                     
                                                                                                                                
The NRA believes the municipal opt-out provision is                                                                             
unconstitutional and should be deleted.                                                                                         
                                                                                                                                
CHAIRMAN TAYLOR asked if he is suggesting the committee add                                                                     
language to the bill in the form of an amendment.                                                                               
                                                                                                                                
MR. JUDY responded no, the language in the current CS takes away                                                                
from municipalities the ability to put on the ballot and opt-out of                                                             
the concealed weapon permit law, which is consistent with the state                                                             
constitution.  This is a provision that was virtually unused--only                                                              
one community has attempted to opt-out.                                                                                         
                                                                                                                                
MR. JUDY noted that the NRA supports deleting the competency                                                                    
requirement.                                                                                                                    
                                                                                                                                
Number 1420                                                                                                                     
                                                                                                                                
SENATOR DONLEY asked how long the CCW permits are good for now.                                                                 
                                                                                                                                
MR. JUDY responded they are good for five years under existing law.                                                             
                                                                                                                                
MS. JANIE WINEIGER, field representative for the NRA, commented she                                                             
is an instructor for the NRA and has had many calls concerning some                                                             
of the needed changes.  Alaska residents want to know what the law                                                              
is and how it applies and they want to know what agreement Alaska                                                               
has with other states.  As an instructor she needs clear, concise                                                               
information to pass on to permit holders in state and out of state.                                                             
States that grant reciprocity need to be listed, and the permits                                                                
and licensing department needs to update the web site accordingly.                                                              
The demonstration of competency with caliber and action types is                                                                
not needed--live fire is always part of the course curriculum.  The                                                             
issuance of permits has been critically slow and the process needs                                                              
to be streamlined so people can receive their permits in a timely                                                               
manner.  Ms. Wineiger supports CSSB 294.                                                                                        
                                                                                                                                
Number 1570                                                                                                                     
                                                                                                                                
MS. LAUREE HUGONIN, Director of the Alaska Network on Domestic                                                                  
Violence and Sexual Assault, stated she is glad she does not often                                                              
have to come before the committee in opposition to a bill.  The                                                                 
Network is opposed to the changes in CSSB 294, especially the seven                                                             
year time limit for the photo--a persons appearance can change                                                                  
within a matter of months, let alone seven years.   The Network                                                                 
does not want the demonstration of competency with specific action                                                              
type and caliber removed from the permit process, and they feel it                                                              
is important to give communities the opportunity to opt-out--people                                                             
should be able to decide how they want their community to be.                                                                   
                                                                                                                                
Number 1681                                                                                                                     
                                                                                                                                
MR. ELZIE ISLEY, representing himself, stated he thinks SB 294 is                                                               
a wonderful bill.                                                                                                               
                                                                                                                                
Number 1709                                                                                                                     
                                                                                                                                
LIEUTENANT DAVID HUDSON, Department of Public Safety (DPS), stated                                                              
DPS appreciates what the committee has done to help benefit the                                                                 
program.  Lieutenant Hudson suggests that "at least as strict"                                                                  
should be removed completely from the statute.  Language can be                                                                 
added that says  a person holding a valid permit to carry a                                                                     
concealed handgun from another state and with a signed statement                                                                
from an authorized representative of that state saying they will                                                                
accept an Alaska concealed handgun permit, that Alaska will                                                                     
reciprocate by taking that state's permit.                                                                                      
                                                                                                                                
LIEUTENANT HUDSON said that rather than change the competency                                                                   
requirement and a couple of issues concerning misdemeanors, if the                                                              
reciprocal agreement is signed at the level of permit managers,                                                                 
Alaskan's could be allowed to carry firearms with their concealed                                                               
handgun permit in other states.                                                                                                 
                                                                                                                                
Lieutenant Hudson said he supports changing the renewal process                                                                 
allowing applicants to file for a permit renewal up to 60 days                                                                  
after the expiration of their permit.  He also thinks that                                                                      
eliminating the thumbprint on the renewal is an excellent idea.                                                                 
                                                                                                                                
LIEUTENANT HUDSON stated he is confused about the photograph issue.                                                             
The CS indicates that if a person has had a permit for five years,                                                              
when applying for a renewal they can provide a photograph that was                                                              
taken two years before they applied for their initial permit.  The                                                              
whole idea of a photograph is to allow for the change in a persons                                                              
appearance.                                                                                                                     
                                                                                                                                
LIEUTENANT HUDSON said that changing the law from perjury to                                                                    
unsworn falsification fits in with the Title 28 vehicle laws.  Not                                                              
needing a notarized signature will save people money and make the                                                               
process more convenient.                                                                                                        
                                                                                                                                
Number 1982                                                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR asked what is required now for a drivers license                                                                
photograph.                                                                                                                     
                                                                                                                                
LIEUTENANT HUDSON responded a photograph is good for a maximum of                                                               
ten years by allowing a sticker to put on the back of the license                                                               
in lieu of updating the photograph.                                                                                             
                                                                                                                                
MR. DUANE UDLAND, representing the Alaska Association of Chiefs of                                                              
Police,  said the Association has a problem with some of the                                                                    
language in the bill.  On page 4, section 6, it appears that a                                                                  
permit can no longer be revoked for false information, and the                                                                  
Association feels that losing a permit should be an option.                                                                     
Another problem is on page 7, section 12(a)(2), "crimes against a                                                               
person" is the only misdemeanor that counts--burglaries and thefts                                                              
should be considered for screening with the possible outcome of a                                                               
denied permit.                                                                                                                  
                                                                                                                                
CHAIRMAN TAYLOR noted that some of Mr. Udlands concerns have been                                                               
addressed in CSSB 294.                                                                                                          
                                                                                                                                
MR. PAT JOHNSON, a member of the NRA and a concealed carry                                                                      
instructor in Homer, said, overall, he thinks CSSB 294 is a good                                                                
bill.  He likes Lieutenant Hudson's suggestion for reciprocity as                                                               
it is a continuing problem.  He said that 95% of his students do                                                                
not need competency testing because students do a lot of dry firing                                                             
during a course, and he will not sign off on a certificate if he                                                                
does not like someone's attitude or if they do not have the ability                                                             
to fire a gun safely.                                                                                                           
                                                                                                                                
            SJR 15-CONST. AM: APPOINTMENT OF JUDGES                                                                             
                                                                                                                                
MS. STEPHANIE COLE, Administrative Director for the Alaska Court                                                                
System, said the retention system that is currently in place in                                                                 
Alaska is often cited as a national model--a model that balances                                                                
judicial accountability against judicial independence preserving a                                                              
judge's ability to make decisions impartially against the public's                                                              
very important right to hold judges accountable.  Judicial                                                                      
accountability is a concern to the legislature and also to the                                                                  
court.  When talking about judicial accountability there are three                                                              
types of accountability--political, decisional and behavioral.                                                                  
Political accountability is what is accomplished through a                                                                      
retention election, where the public can either approve or remove                                                               
a judge.  Decisional accountability is related to the issue of                                                                  
whether a judge, in a particular case, is correct or incorrect--                                                                
this type of accountability usually comes through the appellate                                                                 
process.  Behavioral accountability is involved when dealing with                                                               
judicial misconduct--primarily this is accomplished through the                                                                 
judicial discipline system.   Shortening the retention period, that                                                             
is proposed in the CS, creates a situation where the line between                                                               
political accountability and decisional accountability start to                                                                 
blur, much to the detriment of the justice system.  The period                                                                  
between judicial retention elections in Alaska is very middle of                                                                
the road, they are in the middle of where most merit selections                                                                 
are.  If the retention periods are shortened there will be a                                                                    
situation where judges are under increased pressure to rule in                                                                  
accord with the current political or public atmosphere.  The whole                                                              
system of government is set up to avoid this from happening.  An                                                                
important obligation of a judge is to preserve and protect the                                                                  
rights of the minority against which the will of the majority                                                                   
should never be able to prevail.  By shortening retention periods,                                                              
it is more likely that political campaigns will be waged against                                                                
individual judges because of an unpopular decision.                                                                             
                                                                                                                                
Tape 00-17, Side B                                                                                                              
                                                                                                                                
MS. COLE said that deciding high profile cases is a difficult thing                                                             
for judges to do at any time but it is especially difficult when a                                                              
judge is facing an eminent retention election.  The court feels it                                                              
would be a backward step to increase the frequency of retention                                                                 
elections.  More frequent campaigns against judges up for election                                                              
is a predictable effect, and as campaigns are mounted against                                                                   
judges it can be expected that judges can and will mount counter                                                                
campaigns.  Judicial fund raising and campaigning is becoming a                                                                 
national issue in this country and it brings in the issue of a                                                                  
judges neutrality.  Only a few cases become controversial, and                                                                  
judges need to be evaluated at regular paced intervals on how they                                                              
are handling all of their cases not just the highly visible cases.                                                              
                                                                                                                                
MS. COLE commented that aside from judicial independence concerns,                                                              
shortening the period between retention elections will have the                                                                 
effect of de-qualifying the qualified applicants seeking judicial                                                               
positions.  It will be harder to hold onto qualified people because                                                             
their job security is less certain with more frequent retention                                                                 
elections.                                                                                                                      
                                                                                                                                
Ms. Cole read a quote by Edward Madiera, Chairman for the ABA's                                                                 
Commission on Separation of Powers and Judicial Independence:                                                                   
"Judicial independence is not for the protection of judges, but for                                                             
the protection of the public."  The judicial system feels that                                                                  
protecting the structural integrity of the system is paramount, and                                                             
this resolution should not move forward.                                                                                        
                                                                                                                                
Number 2242                                                                                                                     
                                                                                                                                
MR. BILL COTTON, Director for the Judicial Council, stated that the                                                             
Judicial Council is an independent agency in the judicial branch of                                                             
government.  They participate in the selection of a judge and the                                                               
evaluation of a judge who is up for retention.  After this process,                                                             
they make their recommendations and information known to the                                                                    
public.  The Judicial Council's job is to try to assure as much                                                                 
excellence in the judicial branch and the judiciary as specifically                                                             
as it can.  This involves balancing judicial accountability and                                                                 
judicial independence.  The Alaska Judicial Council does a more                                                                 
thorough evaluation of judges and makes more information public                                                                 
than any other state in the country.  Alaska is a model for other                                                               
states.  The Judicial Council conducts surveys of police officers,                                                              
attorneys, jurists, child protection workers, etc.  This oversight                                                              
tends to keep judges more responsive to the electorate.  One of the                                                             
basic principles this country was founded on is judicial                                                                        
independence--citizens constitutional rights need to be protected                                                               
even if the powers that be would like a constitutional amendment                                                                
forgotten.  The Council opposes shortening the retention term                                                                   
because it believes the balance of judicial accountability will be                                                              
upset.  It will be harder to get applicants, and it is critical to                                                              
get quality applicants.  By decreasing the stability of the job,                                                                
there will be less incentive for quality private practitioners to                                                               
apply for these positions.  Costs will be increased in terms of the                                                             
state budget, and putting more judges on the ballot will decrease                                                               
the focus  that the council and the electorate will bring against                                                               
individual judges.  Superior court judges are up once every six                                                                 
years and the judicial council does a preliminary evaluation two                                                                
years before that.  There is also an attorney and peace officer                                                                 
survey done twice every six years.                                                                                              
                                                                                                                                
Number 2062                                                                                                                     
                                                                                                                                
JUSTICE JAY RABINOWITZ commented that what the constitutional                                                                   
framers of the Alaska constitution intended has been identified and                                                             
highlighted by his two colleagues.  In his view, the Alaska                                                                     
constitution is a brilliant compromise between the federal system,                                                              
the elected system and the merit system, and the system is not                                                                  
broken.  Alaska's judicial system has been corruption free in terms                                                             
of the judges performance of his or her judicial duty, this is a                                                                
tribute to the Judicial Council's screening and in the care they                                                                
take in the selection process.  Now that the CS is in place, Judge                                                              
Stewart feels many of his remarks may be redundant, but he does                                                                 
feel the system has worked well.                                                                                                
                                                                                                                                
JUSTICE RABINOWITZ commented that talented lawyers without                                                                      
political power and old family connections have been attracted to                                                               
Alaska's judicial system.  This is a philosophy of the west, if a                                                               
person has talent they can apply for and obtain a judicial                                                                      
position--an individual can control their destiny to a large                                                                    
extent.  This is the brilliance of Alaska's founding fathers, a                                                                 
compromise between an elected system and merit retention.  The                                                                  
electoral electorate gets more information from the performance of                                                              
judges than any other political entity in the country.  An educated                                                             
electorate is what is wanted and that is what Alaska is getting.                                                                
                                                                                                                                
JUSTICE RABINOWITZ noted there is a movement to truncate the                                                                    
retention period but initially a person in a judicial position has                                                              
to run within three years, causing a speedy evaluation and analysis                                                             
of the judicial officers performance.  The stress on judges is                                                                  
warranted because it is a trade off between merit selection and                                                                 
accountability.  He congratulated the committee on adopting the CS                                                              
and encouraged the legislature to keep the system as it is.                                                                     
                                                                                                                                
Number 1739                                                                                                                     
                                                                                                                                
MR. LES GARA, an attorney in private practice in Anchorage,                                                                     
commented that he echoes what Judge Rabinowitz had to say, and                                                                  
before the legislature decides to disrupt the compromise that the                                                               
constitutional convention made, he urges the committee to look at                                                               
what the drafters of the Alaska constitution debated and why they                                                               
decided to adopt the system they did.  Mr. Gara quoted Mr. Ed Davis                                                             
who was a delegate of the constitutional convention in 1955, "All                                                               
of us here want an independent judiciary, a judiciary that will not                                                             
be swayed by public will at any particular moment.  A judiciary                                                                 
that will not be subject to any political pressure.  We've taken                                                                
the best means devised yet, to appoint and select qualified judges                                                              
and to keep judges free from outside political pressures and to get                                                             
rid of judges who are not able to properly do their job."  The                                                                  
constitutional convention looked at all of the competing proposals                                                              
of the time and they reached a compromise that has worked very                                                                  
well.                                                                                                                           
                                                                                                                                
Mr. Gara is happy the committee decided to drop the other                                                                       
provisions of SJR 15, but the remaining provisions also increase                                                                
the amount of public pressure on the judiciary beyond what the                                                                  
delegates in 1955 agreed to and thought was appropriate.                                                                        
                                                                                                                                
Mr. Gara addressed the statement made by Mr. Pauley of Senator                                                                  
Lemans office that, "what we have here is a system that is broken,                                                              
that has judges bringing in their political biases and their                                                                    
personal biases--deciding cases on their personal biases."  This is                                                             
not what happens.   One of decisions that spurred the bill prior to                                                             
SJR 15 was a decision by Judge Michalski in Anchorage that lent                                                                 
some support to the idea that maybe homosexual marriage was legal                                                               
under Alaska law.  Judge Michalski decided the case based upon what                                                             
he believed the law was, he did not decide the case based on his                                                                
personal biases, he based the case on what he thought the law                                                                   
required.                                                                                                                       
                                                                                                                                
MR. GARA said when a political issue is being debated, there should                                                             
be a politically biased decision--the legislature debates politics.                                                             
In court a case should not be decided by a judge who bases the case                                                             
on how the decision will look in the newspaper the next day.                                                                    
Judges need to consider the law and all of the facts, but by                                                                    
increasing the number of retention elections judges will be                                                                     
encouraged to issue sound bite decisions.                                                                                       
                                                                                                                                
Number 1477                                                                                                                     
                                                                                                                                
MR. DAVID BUNDY, attorney and member of the  Board of Governors for                                                             
the Alaska Bar Association, stated the legislature should adopt the                                                             
resolution that is currently proposed.  There is no reason to                                                                   
shorten retention terms for members of the judiciary.  The system                                                               
has worked well and the impetus to change it is "wrongly headed."                                                               
It is the nature of the advisory process that there will always be                                                              
unhappy litigants and members of the public who object to                                                                       
decisions.  This does not say that judges are not doing their job,                                                              
it says that judges are doing their job because they are deciding                                                               
difficult issues on which people have strong feelings.  It is the                                                               
duty of the judicial department to say what the law is.  Subjecting                                                             
judges to elections in which they will have to engage in fund                                                                   
raising is undesirable in the extreme because the only people who                                                               
will contribute money to judicial candidates are lawyers.  Judges                                                               
need to be independent of organized interest groups and organized                                                               
political groups.                                                                                                               
                                                                                                                                
There being no further business to come before the committee,                                                                   
CHAIRMAN TAYLOR adjourned the meeting at 3:11 p.m.                                                                              
                                                                                                                                
                                                                                                                                

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