02/17/2021 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB14 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | SB 14 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 17, 2021
1:33 p.m.
MEMBERS PRESENT
Senator Lora Reinbold, Chair
Senator Mike Shower, Vice Chair
Senator Shelley Hughes
Senator Robert Myers
Senator Jesse Kiehl
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
PRESENTATION: HISTORY OF PANDEMICS BY DAVID BARTON~ HISTORIAN
- POSTPONED
SENATE BILL NO. 14
"An Act relating to the selection and retention of judicial
officers for the court of appeals and the district court and of
magistrates; relating to the duties of the judicial council;
relating to the duties of the Commission on Judicial Conduct;
and relating to retention or rejection of a judicial officer."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
No previous action to record
BILL: SB 14
SHORT TITLE: SELECTION AND REVIEW OF JUDGES
SPONSOR(s): SENATOR(s) SHOWER
01/22/21 (S) PREFILE RELEASED 1/8/21
01/22/21 (S) READ THE FIRST TIME - REFERRALS
01/22/21 (S) JUD
02/03/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/03/21 (S) Heard & Held
02/03/21 (S) MINUTE(JUD)
02/05/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/05/21 (S) Scheduled but Not Heard
02/10/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/10/21 (S) Heard & Held
02/10/21 (S) MINUTE(JUD)
02/12/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/12/21 (S) Heard & Held
02/12/21 (S) MINUTE(JUD)
02/15/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/15/21 (S) Heard & Held
02/15/21 (S) MINUTE(JUD)
02/17/21 (S) JUD AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
SANDON FISHER, Attorney
Legislative Legal Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Answered questions during the discussion of
SB 14.
NANCY MEADE, General Counsel
Administrative Offices
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the discussion of
SB 14.
BUDDY WHITT, Staff
Senator Shelley Hughes
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Explained amendments to SB 14 on behalf of
Senator Hughes.
MARLA GREENSTEIN, Executive Director
Alaska Commission on Judicial Conduct
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: Answered questions on amendments to SB 14.
JOHN HOWARD, Attorney
JW Howard Law Office
San Diego, California
POSITION STATEMENT: Testified on the political nature of
judicial appointments during the discussion of SB 14.
ACTION NARRATIVE
1:33:52 PM
CHAIR LORA REINBOLD called the Senate Judiciary Standing
Committee meeting to order at 1:33 p.m. Present at the call to
order were Senators Shower, Kiehl, Myers, Hughes, and Chair
Reinbold.
SB 14-SELECTION AND REVIEW OF JUDGES
1:35:32 PM
CHAIR REINBOLD announced consideration of SENATE BILL NO. 14,
"An Act relating to the selection and retention of judicial
officers for the court of appeals and the district court and of
magistrates; relating to the duties of the judicial council;
relating to the duties of the Commission on Judicial Conduct;
and relating to retention or rejection of a judicial officer."
1:36:06 PM
SENATOR MYERS moved Amendment 1, [work order 32-LS0171\A.5],
which read as follows [original punctuation included]:
32-LS0171\A.5
Fisher
2/15/21
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR MYERS
Page 6, lines 2 - 3:
Delete "strict constitutional interpretation of
statutes and regulations and"
Page 7, lines 16 - 17:
Delete "strict constitutional interpretation of
statutes and regulations and"
CHAIR REINBOLD objected for discussion purposes.
1:36:08 PM
SENATOR MYERS explained Amendment 1. He said "strict
constitutional interpretation" represents his beliefs, but the
term is more of a philosophical or academic term and less a
legal one. He said it would not be appropriate to place nebulous
language into statute. Whether a person being nominated as a
judge believed in strict constitutional interpretation would be
up to the governor making the appointment or members of the
legislature to determine. Further, if a governor or a majority
of legislators did not personally believe in "strict
constitutional interpretation," it would become a moot point.
1:38:01 PM
SENATOR SHOWER expressed his willingness to improve the bill and
consider proposed amendments. He preferred to retain the "strict
constitutional interpretation" language as a "litmus test," and
a means to provide legislative intent since that is what judges
are charged to consider. However, the court system advised that
judges are specialized and trained to be impartial. Although he
questioned how anyone could be completely unbiased, he
understood the concern. Therefore, he offered to support
Amendment 1.
1:39:57 PM
SENATOR KIEHL said he shares Senator Myer's concern about the
underlying premise. Amendment 1 would lead to an odd result
because it would only allow the Judicial Council to forward an
applicant's name to the governor for judicial consideration if
the person committed to adhering to legislative intent. This
could eliminate many good jurists and would have eliminated US
Supreme Court Justices Scalia and Thomas, who consider the US
Constitution in their deliberations. While he disagrees with
many of their conclusions, he said they did not consider
legislative intent.
1:41:13 PM
SENATOR SHOWER agreed with Senator Kiehl. He suggested the
committee may wish to discuss this further with the Legislative
Legal attorney who drafted SB 14.
1:42:10 PM
SANDON FISHER, Attorney, Legislative Legal Services, Legislative
Affairs Agency, Juneau, Alaska, explained that Amendment 1 would
change the bill so the Judicial Council could only submit the
names of people it determines would adhere to legislative
intent. Currently, in Alaska, courts use the sliding scale
approach, so the clearer the bill's language, the less likely a
court will look at legislative intent. When courts cannot
determine what the legislature intended in the plain language of
the bill, the court will seek to find legislative intent. The
stronger the legislative intent and will of the legislature, the
more likely a court will consider it, he said. He opined that
this amendment could be construed as something that would
encourage judicial officers to try to find legislative intent
even when the language in the statute is clear on its face.
1:43:33 PM
SENATOR MYERS acknowledged that he had considered that the
legislative intent language would remain, which seemed
appropriate since the courts already consider legislative
intent. Ultimately, the judicial system should allow the
legislature latitude to act unless it directly conflicts with
the US Constitution or the Alaska Constitution. He maintained
his view that it is still appropriate to leave it in the bill
since the courts should seriously consider legislative intent.
1:44:37 PM
CHAIR REINBOLD solicited a response from the court system.
1:44:59 PM
SENATOR SHOWER asked for clarification on how this might affect
the courts.
1:45:27 PM
NANCY MEADE, General Counsel, Administrative Offices, Alaska
Court System, Anchorage, Alaska, after clarifying the question,
replied that she agreed with the Legislative Legal attorney that
the clearer the statutory language, the less likely legislative
intent has any impact or how the statute should apply. Amendment
1 is problematic because an applicant would need to adhere to
"strict constitutional interpretation of statutes and
regulations" without necessarily understanding the legislative
intent. Further, the language is somewhat confusing since the
intent could vary depending on the legislator; it could refer to
legislative intent in a bill or the debate held. Legislative
intent should be embodied in the words of the statute, so
questions do not arise as to the legislature's intent.
1:48:13 PM
SENATOR HUGHES asked for suggested language changes for
Amendment 1. She related her understanding that judges sometimes
look at legislative intent for guidance. She said that the
legislature wants judicial candidates to agree when the
statutory language is ambiguous or unclear.
MS. MEADE said she understood the goal of the phrase "strict
constitutional interpretation of statutes and regulations." As
Legislative Legal indicated, judges look at legislative intent
when necessary, but not always. For example, it is clear if the
statute sets criminal penalties for a crime at 5-8 years.
However, if someone said during the debate that if the offender
is a "good guy," the penalty should be reduced to two years, the
judge would not be persuaded to consider it because the
statutory language was clear. She recommended that the
legislature write statutes that reflect its intent. Attorneys
rarely argue legislative intent because the intent is not as
crucial as the statutory language. She said that legislative
intent is only argued when the statutory language is open to
multiple interpretations.
1:50:49 PM
SENATOR MYERS agreed that the point was to put legislative
intent into the statute, but the committee would like to address
instances in which the statute is unclear. He maintained his
desire that the court must consider actions the legislature
takes as important.
1:51:54 PM
CHAIR REINBOLD asked if judges take an Oath of Office to uphold
the US Constitution and Alaska Constitution.
MS. MEADE answered yes.
CHAIR REINBOLD asked if the Constitution was considered the
supreme law.
MS. MEADE answered that is correct.
CHAIR REINBOLD suggested the committee consider removing
"strict" from the language in Amendment 1. She maintained her
view that judges already must [consider the constitutional
interpretation of statutes and regulations].
1:52:53 PM
MS. MEADE agreed that judges apply the statutes as written. She
explained that this language is problematic, with or without
"strict" because it is unclear what it means. She said, "They
agree to adhere to statutes. They agree to adhere to the
Constitution." She suggested that perhaps members were trying to
say that judges must agree to interpret the statutes in a way
that comports with the Constitution and not find them
unconstitutional. She was uncertain if that was the goal. She
argued that the courts give statutes a presumption of
constitutionality. Thus, she said a high burden must be overcome
to call a statute unconstitutional. Indeed, judges already
commit to following the Constitution and statutes. However,
adhering to legislative intent is sometimes different.
1:54:21 PM
SENATOR HUGHES emphasized that the goal is to have new entrants
into the system adhere to legislative intent. She asked if it
might be better to introduce a bill requiring judges to adhere
to legislative intent when the statutory language was unclear.
SENATOR MYERS said it made sense to keep this language in the
bill. He surmised that perhaps within 10 years, most judges will
have gone through this process. He agreed that a separate bill
could address sitting judges.
1:56:04 PM
SENATOR SHOWER said if the goal of SB 14 is to indicate what
prospective judges should do, it might be good to emphasize what
the legislature wants them to do. Judges should consider the
Constitution and legislative intent when necessary. He suggested
that deleting "strict" might provide an acceptable solution.
1:57:34 PM
CHAIR REINBOLD recapped her understanding of the discussion. She
referred to page 6, [line 1] of SB 14, and read, "? the judicial
council determines that the judicial candidate understands and
is committed to a strict constitutional interpretation of
statutes and regulations and adhering to legislative intent."
She stated that Amendment 1 would remove the language "strict
constitutional interpretation of statutes and regulations". She
said that she and Senator Shower suggested removing "strict" as
one possible solution. She asked it that is the sponsor's
intent.
SENATOR SHOWER answered yes. He said he supported removing
"strict."
1:58:37 PM
SENATOR KIEHL related that Ms. Meade described the judiciary's
process. He asked if the judicial construction rules were
codified.
MS. MEADE answered that judicial rules are not in state
statutes. However, there is long-standing precedent and
treatises on the statutory interpretation standards used by
judges and attorneys throughout the country. Alaska has its own
set of case law that establishes how to interpret and apply
statutes. Alaska judges will resort to legislative intent when
they need help interpreting the statute since judges recognize
that the legislative branch should set policy. As the bill
drafter stated, the clearer the statute, the less likely anyone
would need to research legislative intent.
2:00:04 PM
SENATOR KIEHL remarked that what she describes and the
discussion appears to mesh well. He related his understanding
that judges already consider the statutes. He asked how
Amendment 1 would change what judges are supposed to do.
MS. MEADE answered that if the statute states that judges should
resort to legislative intent when the statute was unclear, it
will not change the current practice judges undergo.
SENATOR KIEHL pointed out that "unclear" does not appear in the
bill.
2:01:14 PM
CHAIR REINBOLD maintained her support to delete "strict" from
Amendment 1, which the sponsor also supports. She stated that
judges take an oath to uphold the Constitution, and
constitutional interpretation is an important aspect of judicial
duties.
SENATOR SHOWER said that the debate is moving more towards
judicial duties of sitting judges, but the bill relates to the
process of selecting lawyers for judicial appointment
consideration.
2:03:00 PM
At ease
2:05:21 PM
CHAIR REINBOLD reconvened the meeting. She explained that the
committee was still deliberating on the direction to take with
Amendment 1. She maintained her interest in the language,
"constitutional interpretation of statutes and regulations." She
suggested members might consider adding the language "to adhere
to legislative intent to the best of their ability."
2:06:02 PM
MS. MEADE remarked that the court does not believe in having an
ideological test for judicial candidates. She suggested that the
committee may wish to add the phrase, "adhering to legislative
intent when necessary." She said this is a policy call for the
committee.
2:06:48 PM
SENATOR MYERS suggested tabling Amendment 1.
CHAIR REINBOLD rolled Amendment 1 to the bottom of the
amendments.
2:07:25 PM
SENATOR HUGHES moved Amendment 2, [work order 32-LS0171\A.6],
which read as follows:
32-LS0171\A.6
Fisher
2/15/21
AMENDMENT 2
OFFERED IN THE SENATE BY SENATOR HUGHES
Page 3, line 20:
Delete "Commission on Judicial Conduct [JUDICIAL
COUNCIL]"
Insert "judicial council"
Page 3, lines 24 - 25:
Delete "Commission on Judicial Conduct [JUDICIAL
COUNCIL]"
Insert "judicial council"
Page 4, lines 7 - 24:
Delete all material.
Renumber the following bill sections accordingly.
Page 4, line 28:
Delete "Commission on Judicial Conduct [JUDICIAL
COUNCIL]"
Insert "judicial council"
Page 5, lines 1 - 2:
Delete "Commission on Judicial Conduct [JUDICIAL
COUNCIL]"
Insert "judicial council"
Page 6, lines 4 - 19:
Delete all material.
Renumber the following bill sections accordingly.
Page 7, line 22:
Delete "Commission on Judicial Conduct [JUDICIAL
COUNCIL]"
Insert "judicial council"
Page 7, line 27:
Delete "Commission on Judicial Conduct [JUDICIAL
COUNCIL]"
Insert "judicial council"
Page 9, following line 21:
Insert a new bill section to read:
"* Sec. 20. AS 22.30.011(h) is amended to read:
(h) If a judge or magistrate has been publicly
reprimanded, suspended, or publicly censured under
this section and the judge or magistrate has filed a
declaration of candidacy for retention in office, the
commission shall report to the judicial council for
inclusion in the statement filed by the judicial
council under AS 15.58.050 each public reprimand,
suspension, or public censure received by the judge or
magistrate
(1) since appointment; or
(2) if the judge or magistrate has been
retained by election, since the last retention
election of the judge or magistrate."
Renumber the following bill section accordingly.
Page 11, lines 3 - 4:
Delete "Commission on Judicial Conduct"
Insert "judicial council"
Page 11, line 6:
Delete "AS 22.15.170(c), 22.15.170(d); and
AS 22.30.011(h)"
Insert "AS 22.15.170(c) and 22.15.170(d)"
CHAIR REINBOLD objected for discussion purposes.
CHAIR HUGHES explained that Amendment 2 would ask the Commission
on Judicial Conduct to evaluate prospective judicial candidates
since the commission already evaluates sitting judges. It would
revert to the current Judicial Council process for selecting
judicial nominees. She referred to proposed Amendment 3 [not yet
offered], which would require the Commission on Judicial Conduct
to provide an ethics evaluation and report of applicants.
2:08:53 PM
BUDDY WHITT, Staff, Senator Shelley Hughes, Alaska State
Legislature, Juneau, Alaska, on behalf of Senator Hughes,
explained that Amendment 2 would put the Judicial Council back
into the bill. He detailed each change in Amendment 2, including
reinstating repealed statues to accomplish it.
CHAIR REINBOLD asked for a brief recap of the changes.
MR. WHITT explained that Amendment 2 would shift the Commission
on Judicial Conduct responsibilities back to the Judicial
Council.
2:11:21 PM
MS. MEADE said that the court system does not have any issue
shifting the reviews [of prospective judicial candidates] back
to the Judicial Council. She maintained the ACS's objects to
including magistrates in the bill.
2:11:44 PM
SENATOR SHOWER, as sponsor of SB 14, maintained his commitment
to seek solutions to improve the bill. He anticipated that
Amendment 2 would provide a better path forward and reduce the
fiscal impact. He said he had no objection to Amendment 2.
2:13:15 PM
CHAIR REINBOLD anticipated that the fiscal notes would be
reduced and revised before the committee would review them.
CHAIR REINBOLD removed her objection. [There being no further
objection, Amendment 2 was adopted].
2:13:52 PM
SENATOR HUGHES moved Amendment 3, [work order 32-LS 1071\A.7],
which read:
32-LS0171\A.7
Fisher
2/16/21
AMENDMENT 3
OFFERED IN THE SENATE BY SENATOR HUGHES
Page 1, lines 1 - 2:
Delete "court of appeals and the district court"
Insert "supreme court, court of appeals, superior
court, and district court,"
Page 1, line 3, following "council;":
Insert "and"
Page 1, lines 3 - 4:
Delete "; and relating to retention or rejection
of a judicial officer"
Page 4, following line 10:
Insert a new bill section to read:
"* Sec. 10. AS 22.05.080(b) is amended to read:
(b) The office of a supreme court justice,
including the office of chief justice, becomes vacant
90 days after the election at which the justice is
rejected by a majority of those voting on the question
or for which the justice fails to file a declaration
of candidacy. Upon the occurrence of (1) an actual
vacancy; (2) the certification of rejection following
an election; or (3) the election following failure of
a justice to file a declaration of candidacy, the
judicial council shall, within 30 days, submit to the
Commission on Judicial Conduct the names of applicants
whom the judicial council will consider for nomination
so that the Commission on Judicial Conduct may
complete its review under AS 22.30.011(i) and, [MEET]
within 90 days, meet and submit to the governor the
names of two or more persons qualified for the
judicial office for whom the Commission on Judicial
Conduct has completed its review under
AS 23.30.011(i); [EXCEPT THAT] this 90-day period may
be extended by the council with the concurrence of the
supreme court. In the event of an impending vacancy
other than by reason of rejection or failure to file a
declaration of candidacy, the council may, at any time
within the 90-day period immediately preceding the
effective date of the vacancy, submit to the
Commission on Judicial Conduct the names of applicants
whom the judicial council will consider for nomination
so that the Commission on Judicial Conduct may
complete its review under AS 22.30.011(i), meet, [AT
ANY TIME WITHIN THE 90-DAY PERIOD IMMEDIATELY
PRECEDING THE EFFECTIVE DATE OF THE VACANCY] and
submit to the governor the names of two or more
persons qualified for the judicial office for whom the
Commission on Judicial Conduct has completed its
review under AS 23.30.011(i)."
Renumber the following bill sections accordingly.
Page 5, line 24:
Delete "meet within 90 days"
Insert ", within 30 days, submit to the
Commission on Judicial Conduct the names of applicants
whom the judicial council will consider for nomination
so that the Commission on Judicial Conduct may
complete its review under AS 22.30.011(i) and, [MEET]
within 90 days, meet"
Page 5, line 25, following "office":
Insert "for whom the Commission on Judicial
Conduct has completed its review under
AS 22.30.011(i)"
Page 5, line 28:
Delete "meet"
Insert ", [MEET]"
Page 5, line 29, following "vacancy":
Insert ", submit to the Commission on Judicial
Conduct the names of applicants the judicial council
will consider for nomination so that the Commission on
Judicial Conduct may complete its review under
AS 22.30.011(i), meet,"
Page 5, line 30, following "office":
Insert "for whom the Commission on Judicial
Conduct has completed its review under
AS 23.30.011(i)."
Page 6, line 3:
Delete "."
Insert "."
Page 6, following line 3:
Insert a new bill section to read:
"* Sec. 14. AS 22.10.100(b) is amended to read:
(b) The office of a superior court judge becomes
vacant 90 days after the election at which the judge
is rejected by a majority of those voting on the
question or for which the judge fails to file a
declaration of candidacy. Upon the occurrence of (1)
an actual vacancy; (2) the certification of rejection
following an election; or (3) the election following
failure of a judge to file a declaration of candidacy,
the judicial council shall, within 30 days, submit to
the Commission on Judicial Conduct the names of
applicants whom the judicial council will consider for
nomination so that the Commission on Judicial Conduct
may complete its review under AS 22.30.011(i) and,
[MEET] within 90 days, meet and submit to the governor
the names of two or more persons qualified for the
judicial office for whom the Commission on Judicial
Conduct has completed its review under
AS 23.30.011(i); [EXCEPT THAT] this 90-day period may
be extended by the council with the concurrence of the
supreme court. In the event of an impending vacancy
other than by reason of rejection or failure to file a
declaration of candidacy, the council may, [MEET] at
any time within the 90-day period immediately
preceding the effective date of the vacancy, submit to
the Commission on Judicial Conduct the names of
applicants the judicial council will consider for
nomination so that the Commission on Judicial Conduct
may complete its review under AS 22.30.011(i), meet,
and submit to the governor the names of two or more
persons qualified for the judicial office for whom the
Commission on Judicial Conduct has completed its
review under AS 23.30.011(i)."
Renumber the following bill sections accordingly.
Page 7, line 6:
Delete "meet"
Insert ", within 30 days, submit to the
Commission on Judicial Conduct the names of applicants
whom the judicial council will consider for nomination
so that the Commission on Judicial Conduct may
complete its review under AS 22.30.011(i) and, [MEET]"
Page 7, line 7, following "days":
Insert ", meet"
Page 7, line 8:
Delete "; except that"
Insert "for whom the Commission on Judicial
Conduct has completed its review under
AS 22.30.011(i); [EXCEPT THAT]"
Page 7, line 11:
Delete "meet"
Insert ", [MEET]"
Page 7, line 12, following "vacancy":
Insert ", submit to the Commission on Judicial
Conduct the names of applicants whom the judicial
council will consider for nomination so that the
Commission on Judicial Conduct may complete its review
under AS 22.30.011(i), meet, and"
Page 7, line 13, following "position":
Insert "for whom the Commission on Judicial
Conduct has completed its review under
AS 23.30.011(i)"
Page 9, following line 21:
Insert a new section to read:
"* Sec. 25. AS 22.30.011 is amended by adding a new
subsection to read:
(i) The commission shall conduct an ethics
review of each applicant for judicial office or
magistrate's office submitted to the commission by the
judicial council under AS 22.05.080, AS 22.07.070,
AS 22.10.100, and AS 22.15.170 and, within 30 days
after receiving the names of applicants, submit the
results of the commission's review under this
subsection to the judicial council."
Renumber the following bill sections accordingly.
2:14:05 PM
SENATOR HUGHES explained that Amendment 3 would provide more
information during the selection process for judges. The
commission would complete an ethics review of candidates. The
commission's executive director did not believe adding the
ethics review of applicants would be problematic.
2:15:13 PM
CHAIR REINBOLD objected for discussion purposes.
SENATOR HUGHES explained that the Commission on Judicial Conduct
would conduct an ethics evaluation of judicial applicants and
report it to the Judicial Council for use in the selection
process.
2:15:17 PM
MR. WHITT reviewed the specific details for Amendment 3, which
requires the Commission on Judicial Conduct to conduct an ethics
evaluation for attorney applicants seeking to serve on the
Alaska Supreme Court, the Court of Appeals, Superior Court,
District Court, and as magistrates. He pointed out that
Legislative Legal brought to the sponsor's attention that
Article 4, Section 8 of the Alaska Constitution mentions that
the Judicial Council would act according to rules that it
adopts. The Judicial Council shall perform other duties as
assigned by law. The sponsor of Amendment 3 asserts that the
legislature can assign any additional duties for ethics
evaluations.
2:18:02 PM
SENATOR SHOWER said that he supports the changes incorporated in
Amendment 3.
2:18:24 PM
SENATOR KIEHL asked what the ethics review would entail.
SENATOR HUGHES answered that the ethics review would research
the attorney's record and forward any comments to the Judicial
Council.
2:19:24 PM
SENATOR KIEHL said he examined applicant packets and reports
prepared by the Judicial Council. He characterized the council's
review as an extensive review of an applicant's background. He
asked what Amendment 3 was trying to add that is lacking in the
current review process.
2:19:57 PM
SENATOR HUGHES highlighted that the Commission on Judicial
Conduct has expertise in ethics to drill down.
2:20:35 PM
MARLA GREENSTEIN, Executive Director, Alaska Commission on
Judicial Conduct, Alaska Court System, Anchorage, Alaska,
related that, broadly speaking, the commission could probably
take on the reviews. She explained that lawyers are governed by
different ethical rules than judges. She envisioned that the
commission would take on a review of the attorney's disciplinary
history using information provided by the Alaska Bar Association
(ABA) so it could be a quick process. She suggested that Suzanne
DiPietro, as director of the council, could probably better
explain what that process would entail.
2:21:49 PM
CHAIR REINBOLD remarked that the courts assert that judicial
decisions are not political. She said that sets an extremely
high standard that courts are unlikely to achieve. She asked if
this review would include campaign or political activity to
quash political activism.
2:22:35 PM
SENATOR HUGHES highlighted that she considered it more of a
review to ensure attorneys adhered to their code of ethics. She
was unsure if political activities were part of it.
CHAIR REINBOLD asked if that was the sponsor's intention in
Amendment 3.
SENATOR HUGHES provided an example, such that individual
committee members adhere to a standard of ethics even though
their politics differ. She said Amendment 3 does not measure
that. Instead, the Commission on Judicial Conduct review would
relate to ethics and integrity, she said.
CHAIR REINBOLD argued that if someone is actively involved in
politics, their deep political activism will fall under ethics.
SENATOR HUGHES pointed out that a practicing attorney can
currently participate in partisan politics, but judges cannot.
She said she did not want to limit someone from becoming a judge
because the attorney has been involved in partisan activities.
However, once the person is sworn in as a judge, the judge must
refrain from partisan politics, she said.
2:25:02 PM
SENATOR SHOWER asked Ms. Greenstein to discuss the fiscal note.
MS. GREENSTEIN envisioned if the CJC is no longer responsible
for conducting retention reviews but would instead conduct
ethical reviews for magistrates, the commission would probably
need a part-time position to accomplish the reviews. She
estimated the commission would need one full-time person to
review judicial applicants and magistrates. She suggested that
holding four currently scheduled commission meetings would
suffice, but the committee would need to extend each meeting by
a day to perform ethics reviews. These changes will have some
fiscal impact, but it is much less than the original version,
she said.
2:27:09 PM
CHAIR REINBOLD asked if the commission's ethics review would
look at lobbying activities for or against resource development,
union activity, and social activism.
MS. GREENSTEIN said two separate ethics codes would apply. If a
lawyer acted as a lobbyist but had no ethics complaints, it
would not raise any issue. However, if appointed, the CJC would
also review the attorney's ability to comply with the Code of
Judicial Conduct. A prominent provision in the code requires
judges to be impartial and not bring in any personal beliefs.
Merely being a lobbyist would not disqualify the attorney, but
it would raise the issue of whether the person could set aside
their strong affiliations and be impartial. She said that some
people can do that very effectively and others cannot.
CHAIR REINBOLD pointed out that the person's spouse might work
for an oil company or Native corporation. She said she was
unsure what standard is required for a judge or magistrate to
recuse themselves.
2:29:35 PM
MS. GREENSTEIN indicated it would depend on the conflict, but
disqualification statutes and disqualification provisions within
the Code of Judicial Conduct both would apply. When a spouse or
another member of the judge's household has a financial interest
in a proceeding, the judge cannot hear the case. Still, other
tangential relationships would require further analysis.
Further, a judge cannot hear any cases that might create an
appearance of partiality, which would erode the public's
confidence in the decision. This standard is very broad, but
judges are very sensitive to it. She said that judges will often
err on the side of caution rather than creating an appearance of
partiality.
2:30:35 PM
CHAIR REINBOLD asked her to present the Judicial Code of Ethics
to the committee at some future date. She maintained her view
that some court decisions show judicial activism, including
those related to resource development issues.
MS. GREENSTEIN agreed to do so.
2:31:32 PM
SENATOR KIEHL said he was inclined to agree to allow judicial
applicants who previously participated in politics to be
considered so long as the applicants can be impartial on the
bench. He pointed out the title change in Amendment 3 would
significantly broaden the bill and asked for clarification.
SENATOR HUGHES deferred to her staff to respond.
2:33:15 PM
SENATOR KIEHL stated that the title change would broaden the
bill to include retention or rejection of a judicial officer for
all levels of Alaska courts. [Page 1, lines 1-3 of] Amendment 3
would add the "supreme court, court of appeals, superior court,
and district court" to the title. An alternate approach would be
to amend the title to include ethical reviews for judicial
applicants. He asked for clarification.
2:34:10 PM
MR. WHITT said the sponsor of Amendment 3 wanted this review to
be universal and apply to any vacancy on the court. He said he
did not specifically discuss the title change with the
Legislative Legal attorney. He surmised it was a drafting
decision.
2:35:09 PM
MR. FISHER advised members that the title must describe all of
the bill topics. Amendment 3 would add ethical reviews for all
courts, including the Superior Court and Supreme Court. The new
title would read, "An Act relating to the selection and
retention of judicial officers for the supreme court, court of
appeals, superior court, district court and of magistrates;
relating to the duties of the judicial council; relating to the
duties of the Commission on Judicial Conduct; and relating to
retention or rejection of a judicial officer." This language
would ensure that the title encompasses the subjects within the
bill. He offered to work with the committee if it desired a
tighter title.
SENATOR HUGHES said she was open to any suggestions.
2:36:23 PM
SENATOR KIEHL suggested he could make a conceptual amendment to
Amendment 3 to add a stand-alone clause relating to ethical
reviews of applicants for judgeships.
SENATOR HUGHES stated she had no objection to a conceptual
amendment to accomplish this.
CHAIR REINBOLD asked for the will of the committee.
2:37:25 PM
MR. WHITT suggested redrafting Amendment 3 with that wording.
MS. MEADE said that the court system is neutral on this. She
pointed out some timing issues might make it difficult for the
Judicial Council to implement the changes. She offered to work
with sponsor of the amendment.
SENATOR SHOWER turned to the fiscal note. He said he understood
that the agency would absorb the costs.
2:39:39 PM
SENATOR HUGHES related her understanding that implementing these
changes would not require extra staff, but Ms. Greenstein said
it would require a half-time position.
2:40:11 PM
MS. GREENSTEIN said she did not recall the issue of ethical
review of judicial applicants previously arose, but she may have
misunderstood the committee. She recapped the fiscal impact;
adding magistrates' ethics review to its current
responsibilities would likely require a half-time person but
conducting ethical reviews for all judicial applicants would
require a full-time person. Since the commission does not
currently perform this work, it would require additional staff.
The commission would extend the regular quarterly meetings from
one to two-day meetings. She offered to consider this further
and prepare the fiscal note.
2:42:17 PM
SENATOR HUGHES asked for the fiscal note effect if the ethical
reviews were limited to judges for the lower courts but not
magistrates. She asked if it would still require a part-time
position.
MS. GREENSTEIN answered that she was unsure of the volume of
candidates that would need review, but she offered to acquire
the number of judges from Ms. DiPietro.
SENATOR HUGHES asked her to provide the information before the
next meeting.
2:43:03 PM
CHAIR REINBOLD remarked that adding one additional staff person
seemed excessive to perform the ethical reviews since the
commission already reviews ethics. She asked the executive
director to work with Senator Hughes on the fiscal note.
2:44:25 PM
SENATOR SHOWER suggested that the committee table Amendment 3.
2:44:58 PM
At ease
2:45:13 PM
CHAIR REINBOLD reconvened the meeting.
2:45:15 PM
SENATOR HUGHES withdrew Amendment 3.
2:45:44 PM
CHAIR REINBOLD introduced invited testimony.
2:46:44 PM
JOHN HOWARD, Attorney, J.W. Howard Attorneys, San Diego,
California, said he was asked to discuss the political nature of
judicial appointments. He outlined the process used in
California, which has not experienced political issues. The
governor nominates applicants and appoints a committee in each
judicial district to vet the candidates and make recommendations
to the governor. He said the governor conducts a second vetting
process before appointing the judge.
MR. HOWARD described the California court system, which consists
of 58 [Superior or] Trial Courts with one in each county, [six]
District Courts of Appeal, and the [State Supreme Court]. The
intermediate courts, [the Courts of Appeal], set significant
precedent in California. The California Supreme Court settles
important questions of law and resolves conflicts among the
Courts of Appeal.
2:50:57 PM
MR. HOWARD characterized California as a partisan state.
However, the local committees have zeroed in on qualification
rather than ideology. He acknowledged that some sitting judges
are liberal and others are conservative. He said he is not aware
of any nominee appointed by the governor that the legislature
has turned down. He maintained his view that the system that
selects judges based on qualifications works well. He suggested
that Alaska may wish to consider having judicial candidates
selected and approved by political bodies.
2:54:33 PM
SENATOR SHOWER told Mr. Howard that he introduced SB 14 to allow
the governor to select nominees submitted by the Judicial
Council or to appoint judicial nominees, subject to confirmation
by the legislature. He said that there was some concern that
this would politicize the process. He related his understanding
that California's process to appoint judges works well but is
not politicized.
MR. HOWARD agreed. He explained that the Democrats have
controlled the legislature since 1959, yet then-Governor Reagan
nominated a number of conservative judges. In his experience,
the California legislature seems to consider qualifications for
judicial nominees, but it has not been seen as a partisan or
political appointment.
2:57:05 PM
SENATOR SHOWER reviewed the composition of the Judicial Council,
noting that the Alaska Bar Association appoints three of the six
members. The other members are public members. He asked if this
raises any constitutional issues with the Judicial Council
making recommendations for retention.
MR. HOWARD answered that the committees in California advise the
governor. The governor can decide not to select the nominees and
select someone else. He said the check on the system is that the
people vote to retain judges, just as in Alaska. He expressed
concern with SB 14 because it appears an official agency of the
Alaska government can weigh in and oppose retention, which is
problematic in terms of equal protection and due process.
2:59:52 PM
CHAIR REINBOLD asked him what he suggested as the solution.
3:00:08 PM
MR. HOWARD suggested forbidding the Judicial Council from
weighing in on elections.
3:00:33 PM
SENATOR MYERS asked how often judges are removed from the bench
in retention elections.
MR. HOWARD replied almost never. Judges are usually reelected if
no one declares against them.
3:01:16 PM
CHAIR REINBOLD remarked that she would like to see the election
pamphlet revised because only a small biography is provided for
each judge who is up for retention.
[SB 14 was held in committee.]
3:02:30 PM
There being no further business to come before the committee,
Chair Reinbold adjourned the Senate Judiciary Standing Committee
meeting at 3:02 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 14 Amendment A.6.pdf |
SJUD 2/17/2021 1:30:00 PM |
SB 14 |
| SB 14 Amendment A.7.pdf |
SJUD 2/17/2021 1:30:00 PM |
SB 14 |
| SB 14 Amendment A.8.pdf |
SJUD 2/17/2021 1:30:00 PM |
SB 14 |
| SB 14 Amendment A.5.pdf |
SJUD 2/17/2021 1:30:00 PM |
SB 14 |