Legislature(2013 - 2014)BELTZ 105 (TSBldg)
02/14/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SJR21 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SJR 21 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 14, 2014
1:46 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Lesil McGuire, Vice Chair
Senator Donald Olson
MEMBERS ABSENT
Senator Fred Dyson
Senator Bill Wielechowski
COMMITTEE CALENDAR
SENATE JOINT RESOLUTION NO. 21
Proposing amendments to the Constitution of the State of Alaska
to increase the number of members on the judicial council and
relating to the initial terms of new members appointed to the
judicial council.
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SJR 21
SHORT TITLE: CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
SPONSOR(s): SENATOR(s) KELLY
02/10/14 (S) READ THE FIRST TIME - REFERRALS
02/10/14 (S) JUD
02/14/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
SENATOR PETE KELLY
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SJR 21.
DAVID PARKER, representing himself
Wasilla, Alaska
POSITION STATEMENT: Agreed with the suggested amendment to SJR
21.
WILLIAM F. CLARK, representing himself
Chugiak, Alaska
POSITION STATEMENT: Offered suggestions to amend SJR 21.
BOB GROSECLOSE, representing himself
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to SJR 21.
ACTION NARRATIVE
1:46:28 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:46 p.m. Present at the call to
order were Senators Olson, McGuire, and Chair Coghill.
SJR 21-CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
1:46:55 PM
CHAIR COGHILL announced the consideration of SJR 21. "Proposing
amendments to the Constitution of the State of Alaska to
increase the number of members on the judicial council and
relating to the initial terms of new members appointed to the
judicial council."
SENATOR PETE KELLY, Alaska State Legislature, sponsor of SJR 21,
introduced the bill speaking to the following sponsor statement:
[Original punctuation provided.]
Senate Joint Resolution 21 would place a
constitutional amendment on the next general election
ballot that would allow the voters to decide whether
the membership of the Alaska judicial council should
be expanded to include 10 public members and 5 attorney
members.
Expanding the council to 10 public members and 5
attorney members with the Chief Justice serving at the
16" and ex-officio member would have Alaska follow a
model used in several other states where a majority of
the nominating committee consists of public "non-
attorney" members. SJR 21 would increase the public's
voice on the judicial council through the addition of
more members who are selected by democratically
accountable officials, i.e., the Governor and the
Legislature. In contrast, the attorney members are
selected by the Board of Governors of the Bar
Association, and are not subject to legislative
confirmation, as they would be in many other states.
More importantly, this model would expand the number
of highly qualified Alaskans who are involved in
vetting an ever-growing number of judicial applicants
for a court system that is much larger than at the
time of statehood. This split retains solid
representation by Alaska Bar Association members while
ensuring the public voice in this process is
strengthened along with regional diversity. According
to the Alaska Constitution, the Governor and the ABA
are tasked with making appointments to the council
based on regional diversity. Three public members and
three attorneys cannot begin to offer adequate
diversity for a state with as many regional interests
and vast differences as Alaska. Offering 7more public
members and 2 more attorney members will allow for a
more diverse body, and the ability to allocate
representation to more than just traditional urban
centers.
SJR 21 will also reduce the likelihood of tie votes
occurring and requiring the chief justice to vote
since it will move the council from 6to 15 regular
voting members. The judicial council bylaws state that
the Chief Justice "shall only vote when to do so could
change the result." These changes will greatly lower
the likelihood of the Chief Justice voting since there
will be an odd number of regular voting members. The
Chief Justice will also be protected from the
appearance of a conflict of interest with a reduced
likelihood of tie votes.
1:54:15 PM
SENATOR KELLY reviewed the names and locations of the attorney
members over the history of the judicial council and commented
that it reads like an urban Alaskan telephone book. He requested
an at ease clarify when an attorney member from rural Alaska
last served on the judicial council.
1:55:40 PM
At ease
1:55:48 PM
CHAIR COGHILL reconvened the meeting.
1:55:50 PM
SENATOR KELLY reported that in the history of the judicial
council there have been no attorney members appointed from rural
Alaska. Fairbanks has had 14 attorney members, Anchorage 12,
Juneau 10, and Ketchikan 3. He identified the locations of the
public members: Anchorage has had 10; Fairbanks 8; Ketchikan 6;
Juneau 5; Homer, Sitka, Wasilla, and Seward have each had 2
public members; and Kotzebue, Barrow, Petersburg, and Kenai have
each had 1. The Alaska Constitution says there shall be regional
diversity but the data shows a different story, he said.
He highlighted that in the past two years there have been four
instances in which the votes of attorney members and public
members were tied when the council was selecting the names of
judicial applicants to forward to the governor. Each time the
chief justice cast the deciding vote in support of the attorney
members, and against the public members. He offered his belief
that this occurred because the deciding vote was cast by another
member of the state bar. Another flaw with the current system is
that it puts the chief justice in the position of a potential
conflict of interest when casting a tie-breaking vote. The chief
justice can vote with his/her state bar colleague and/or select
applicants who think the way he/she thinks. This potential to
mold the supreme court puts the chief justice in an incredible
position of power, he said.
SENATOR KELLY qualified that he believes that the chief justice
should be part of the process and SJR 21 does not envision
removing the chief justice as the tie breaker. What the
legislation does is suggest a larger number of public members,
all of whom have to go through the confirmation process. This
will reduce the possibility of a tie, and when there is a tie it
will never be that a member of the ABA can dictate along with
the other ABA members which name gets forwarded to the governor.
2:00:38 PM
SENATOR MCGUIRE said she supports the bill and the judicial
council, and believes it's always appropriate to reflect on the
way that it works. It should not be viewed as an attack. She
said the sponsor's points are valid although Justice Carpeneti
never sided with the attorney members when he was casting a tie-
breaking vote; he respected the public choice. Nevertheless, the
public is frustrated so it's time to change the system, she
said.
She highlighted the costs and complications of increasing the
judicial council membership to sixteen, and suggested the
sponsor consider an amendment to maintain the number of attorney
members at three, and increase the number of public members to
five or six. This would give the governor more power to shape
the judiciary.
SENATOR KELLY replied the bill seeks to recognize the diversity
in the state and to keep the chief justice from being in a
position of potential conflict of interest. He said the proposed
amendment accomplishes that in a simpler fashion and he would
not object. He noted that the resolution follows the Arizona
model.
2:05:04 PM
CHAIR COGHILL said he'd like to divide the question to first
consider the principle of having more people and then discuss
the way it would work under different scenarios.
SENATOR KELLY restated his support for Senator McGuire's idea.
He reasoned that the number of lawyer members should be fairly
small in relation to the public members if they don't go through
the confirmation process. He said the public members will be
confirmed by people who are elected by the people, and that
makes sense.
He acknowledged that, historically, tie votes are very rare and
that it's even rarer that the chief justice would side with the
attorney members rather than the public members. However,
something has changed in recent years and it's a cause for
action, he said.
CHAIR COGHILL asked if he's considered that adding more public
members might add to the political debate, because the governor
would have more influence. He also asked about the possibility
of politics creeping into attorney appointments.
SENATOR KELLY said he keys on the fact that the people are
frustrated; there is very little accountability with this group
and the public isn't getting the desired results. He questioned
what comes next if the legislature doesn't respond to the will
of the people, and posited that it could be the election of
judges.
CHAIR COGHILL commented that if the governor is appointing it is
thought to be political, but his belief is that attorneys have
their own political undertow.
SENATOR MCGUIRE commented that politics is a reflection of
philosophy and values; and the governor - who is elected by the
people - moves forward with a reflection of that philosophical
choice. She continued to say that the attorneys that serve on
the judicial council hopefully are selected based on competence
and fairness in executing judgment, but they're not devoid of
having a viewpoint.
She agreed with the sponsor that the attorney members' viewpoint
should be more advisory, and the public members would carry out
the will of the people.
CHAIR COGHILL observed that "Right now we're counting on public
members to look into a system that really is mysterious to
people in Alaska because it's not as open." He asked the sponsor
if he'd looked into that.
2:12:47 PM
SENATOR KELLY answered no, but he has opinions.
CHAIR COGHILL offered his belief that having the process out in
the open is better, but that there are reasons that it isn't
because reputations need to be protected.
SENATOR KELLY said he isn't looking for the judicial council
proceedings to be more out in the open, but he doesn't see a
downside to having more members going through the public
confirmation process.
CHAIR COGHILL shared that he found it disturbing during a
committee when a barred lawyer was questioning a public member
in a very pejorative way. This was a disservice to everyone, and
candidates withdrew their names when they saw their political
stances and philosophy would be openly questioned, he said.
2:16:51 PM
SENATOR OLSON asked when a constitutional amendment was last
successful.
SENATOR KELLY replied it was in 2004.
SENATOR OLSON asked to be reminded of the two objectives of the
legislation.
SENATOR KELLY replied the first is regional diversity, which is
almost impossible to achieve with so few members. The second
objective is to keep from putting the chief justice in a
position of potential conflict of interest when he/she casts a
tie-breaking vote. This situation has the appearance of being
realized when the chief sides against the people of Alaska and
votes with the attorney members.
SENATOR OLSON asked who he suggests should break the tie.
SENATOR KELLY explained that the problem is solved by increasing
the number of public members relative to attorney members. If
there's a tie, both sides will include public members so the
chief justice couldn't be in the position of siding with the
attorney members.
SENATOR OLSON commented on the cost associated with doubling the
number of members on the judicial council, and questioned how
the sponsor could justify this when the state is already in
deficit spending.
SENATOR KELLY replied Senator McGuire has the solution; increase
just the number of public members. He said he prefers her
suggestion to the original proposal.
2:20:00 PM
SENATOR OLSON asked how to ensure that the public members will
be qualified to select judicial applicants, some of whom could
sit on the supreme court.
SENATOR KELLY responded that the attorney members will still be
part of the process and have a lot of influence because of their
education and experience, but their role will be more advisory.
CHAIR COGHILL added that both groups will be scrutinized;
attorneys will be reviewed by the state bar and public members
will go through the legislative confirmation process.
2:23:32 PM
CHAIR COGHILL opened public testimony.
SENATOR MCGUIRE discussed the rigorous vetting process a nominee
goes through to become a public member of the judicial council
and emphasized that it isn't just anybody who would qualify.
SENATOR OLSON asked when the last time was that a public member
wasn't confirmed.
SENATOR KELLY offered to follow up with the answer.
SENATOR OLSON reiterated his view that a judicial council with
16 members is too large.
SENATOR KELLY agreed.
2:26:19 PM
DAVID PARKER, representing himself, Wasilla, Alaska, said he is
a retired Anchorage police officer who began serving as a public
member of the judicial council in March. He said he is speaking
in support of the concept of SJR 21, but not the size as
originally envisioned. Rather, he prefers the suggestion Senator
McGuire put forth to increase the number of public members.
He opined that the heart of the issue is that the public's
perception of the judicial council is that the fox is in charge
of the henhouse. He voiced support for increasing the non-
attorney membership by two individuals, and moving to a simple
majority vote. Right now there has to be four positive votes
before a name can be forwarded to the governor, and that can be
difficult. This would also eliminate a lot of the tie votes that
have to be broken by the chief justice.
MR. PARKER also suggested the committee consider removing the
constitutional prohibition against appointing a public defender
or prosecutor to the judicial council, because these people
could bring some very cogent and excellent input into the
process, he said.
2:30:53 PM
CHAIR COGHILL thanked Mr. Parker for his service.
SENATOR OLSON asked if he would support the idea of keeping the
total council membership to a minimum by simply decreasing the
current number of attorney members.
MR. PARKER said he believes that having three attorneys brings
diversity of input and the public members appreciate what the
attorneys bring to the discussion. Increasing the public members
by two wouldn't create much more expense, but would provide
better diversity.
SENATOR OLSON commented that it's unusual that a judicial member
would voice an opinion on legislation that is going through the
process. He asked Mr. Parker if his supposition was wrong.
MR. PARKER replied he is a citizen of the state of Alaska
voicing a concern he's had for many years. He reiterated that
the judicial council needs to reflect the public view better
than it currently does, and adding public members would be an
improvement.
SENATOR OLSON asked if the judicial council has an opinion on
the matter.
MR. PARKER replied the council is planning to meet and discuss
the legislation in the near future. He reiterated that he is
speaking today as a member of the public.
CHAIR COGHILL added that the court will likely have a position
on the legislation.
2:33:58 PM
SENATOR MCGUIRE thanked Mr. Parker for his service both as a
police officer and judicial council member, and for having the
courage to express his First Amendment rights as a citizen.
2:35:20 PM
WILLIAM F. CLARK, representing himself, Chugiak, Alaska, said he
has lived in Alaska for 35 years and has retired twice, first as
a pilot in the Air Force and second as an engineer. He finished
his service as a public member of the judicial council one year
ago and is testifying from that perspective.
He suggested the committee increase the public members on the
judicial council to seven and maintain three attorney members.
If there is a desire to eliminate the potential for a tie vote,
then increase the public members to eight. He said he selected
these numbers because he views the attorneys as very valuable
professional advisors and believes that the public members have
to reflect the public population.
MR. CLARK opined that a 10 or 11 member council, three of which
are attorneys, provides good regional representation while
maintaining the opportunity for the needed technical and
professional input. He concluded that the council shouldn't be
mysterious to the public and the public should be better
represented both regionally and numerically. The focus should be
on the governor; he/she should be given the greatest, broadest
choice of qualified applicants.
CHAIR COGHILL thanked Mr. Clark.
2:47:54 PM
BOB GROSECLOSE, representing himself, Fairbanks, Alaska said he
served on the judicial council from 2000-2006 as an attorney
member. He described the way that Alaska selects its judges as a
model for the rest of the country. It's a process that has
worked well, and any amendment should be carefully considered.
Expanding the council to 16 members will encounter efficiency
issues related to travel and schedule alignment, he said.
He related that when he was serving on the council, he didn't
view his role as serving the lawyers in the state. His mission
was to screen the most qualified candidates to ensure that the
governor was able to select judges from the best that the
candidate pool had to offer. With regard to the comments about
rancor between attorney and public members on the council, he
said that wasn't his experience. He urged the committee to be
truly convinced that a change is necessary before going forward
with the proposal.
2:56:53 PM
CHAIR COGHILL asked his perspective of how the survey works for
attorney members.
MR. GROSECLOSE explained that lawyers are invited to rate
candidates based on temperament, knowledge of the law, honesty,
fairness, and ability to serve in an impartial role. The scoring
options are deficient, acceptable, good and excellent. Each
lawyer filling out the survey identifies their location, years
in practice, whether they focus on civil or criminal, law and
whether they're with a large office or on their own. There is
also the option of adding comments. The lawyer can identify
him/herself by name or choose to be anonymous. Debate at the
council level was how much credence should be given to anonymous
input, how much weight should be given to the bar poll, and is
the bar poll a meaningful tool. He opined that it's a tool that
is worth keeping.
CHAIR COGHILL thanked Mr. Groseclose. [SJR 21 was held in
committee.]
3:01:35 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 3:01 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SJR 21 Sponsor Statement.pdf |
SJUD 2/14/2014 1:30:00 PM |
SJR 21 |
| Historical Roster of AJC members.pdf |
SJUD 2/14/2014 1:30:00 PM |
SJR 21 |
| SJR 21 ARTICLE.IV.pdf |
SJUD 2/14/2014 1:30:00 PM |
SJR 21 |
| SJR 21 Sectional Analysis.pdf |
SJUD 2/14/2014 1:30:00 PM |
SJR 21 |
| Written Testimony - Walter Carpeneti.PDF |
SJUD 2/14/2014 1:30:00 PM |
SJR 21 |
| Fiscal Note - SJR 21 - Div. of Elections.pdf |
SJUD 2/14/2014 1:30:00 PM |
SJR 21 |
| Written Testimony - Bob Groseclose.pdf |
SJUD 2/14/2014 1:30:00 PM |
SJR 21 |
| Written Testimony - Frank Bailey.docx |
SJUD 2/14/2014 1:30:00 PM |
SJR 21 |
| Letter of Support - James Noble.pdf |
SJUD 2/14/2014 1:30:00 PM |
SB 108 |
| Letter of Support - Carmen Gutierrez.pdf |
SJUD 2/14/2014 1:30:00 PM |
SB 108 |
| Letter of Support - Mary Geddes.pdf |
SJUD 2/14/2014 1:30:00 PM |
SB 108 |
| Written Testimony - OVR.pdf |
SJUD 2/14/2014 1:30:00 PM |
SB 108 |