Legislature(2001 - 2002)

04/02/2001 01:41 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                     ALASKA STATE LEGISLATURE                                                                                   
                    SENATE JUDICIARY COMMITTEE                                                                                
                           April 2, 2001                                                                                        
                             1:41 p.m.                                                                                          
MEMBERS PRESENT                                                                                                               
Senator Robin Taylor, Chair                                                                                                     
Senator Dave Donley, Vice Chair                                                                                                 
Senator Gene Therriault                                                                                                         
Senator Johnny Ellis                                                                                                            
MEMBERS ABSENT                                                                                                                
Senator John Cowdery                                                                                                            
COMMITTEE CALENDAR                                                                                                            
SENATE CS FOR CS FOR SS FOR HOUSE BILL NO. 13(CRA)                                                                              
"An Act relating to municipal service areas and providing for voter                                                             
approval of the formation, alteration, or abolishment of certain                                                                
service areas."                                                                                                                 
     HEARD AND HELD                                                                                                             
SENATE JOINT RESOLUTION NO. 22                                                                                                  
Proposing an amendment to the Constitution of the State of Alaska                                                               
relating to the retention elections for justices of the Alaska                                                                  
Supreme Court and judges of the superior court.                                                                                 
     HEARD AND HELD                                                                                                             
PREVIOUS COMMITTEE ACTION                                                                                                     
HB 13 - See Community and Regional Affairs minutes dated 3/19/01.                                                               
WITNESS REGISTER                                                                                                              
Representative Con Bunde                                                                                                        
Alaska State Capitol                                                                                                            
Juneau, Alaska 99801-1182                                                                                                       
POSITION STATEMENT:  Sponsor of HB 13                                                                                         
Mr. Jeffrey Bush, Deputy Commissioner                                                                                           
Department of Commerce & Economic Development                                                                                   
PO Box 110800                                                                                                                   
Juneau, Alaska 99811-0800                                                                                                       
POSITION STATEMENT:  Opposed all of HB 13 except Sec. 4                                                                       
Ms. Jean Woods                                                                                                                  
Box 827                                                                                                                         
Palmer, Alaska 99645                                                                                                            
POSITION STATEMENT:  Supported HB 13                                                                                          
Mr. Joe Balash                                                                                                                  
Staff Aide to Senator Therriault                                                                                                
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Testified on HB 13                                                                                       
Ms. Stephanie Cole, Administrative Director                                                                                     
Alaska Court System                                                                                                             
303 K Street                                                                                                                    
Anchorage, Alaska 99501-2084                                                                                                    
POSITION STATEMENT:  Opposed to SJR 22                                                                                        
Mr. William T. Cotton, Executive Director                                                                                       
Alaska Commission on Judicial Conduct                                                                                           
310 K Street, Suite 301                                                                                                         
Anchorage, Alaska 99501                                                                                                         
POSITION STATEMENT:  Opposed to SJR 22                                                                                        
Mr. Bruce Weyhrauch                                                                                                             
Law Offices of Bruce Weyhrauch                                                                                                  
114 South Franklin Street, Suite 200                                                                                            
Juneau, Alaska 99801                                                                                                            
POSITION STATEMENT:  Opposed to SJR 22                                                                                        
Senior Justice Jay Rabinowitz                                                                                                   
Alaska Court System                                                                                                             
303 K Street                                                                                                                    
Juneau, Alaska 99501-2084                                                                                                       
POSITION STATEMENT:  Opposed to SJR 22                                                                                        
Mr. Les Gara                                                                                                                    
1242 West 10th Avenue                                                                                                           
Anchorage, Alaska 99501                                                                                                         
POSITION STATEMENT:  Opposed to SJR 22                                                                                        
ACTION NARRATIVE                                                                                                              
TAPE 01-14, SIDE A                                                                                                            
Number 001                                                                                                                      
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting                                                           
to order at 1:41 p.m.  Senator Therriault, Senator Ellis, and                                                                   
Chairman Taylor  were present.  Senator Donley arrived  at 2:01 p.m.                                                            
Chairman Taylor  announced the first  order of business would  be HB
           HB 13-SERVICE AREAS: VOTER APPROVAL/TAX ZONES                                                                    
REPRESENTATIVE CON BUNDE,  sponsor of HB 13, said the bill was about                                                            
smaller government, local  control, and privatization.  HB 13 allows                                                            
people in limited  service areas, where changes are  needed, to have                                                            
a vote on the  changes.  There are 200 service areas  in Alaska with                                                            
Fairbanks  having  more than  100.   In order  for  the borough  and                                                            
Municipality  of Anchorage to combine,  people who had limited  road                                                            
service areas  had to be assured a right to maintain  those areas in                                                            
order to convince  them that consolidation  was a good idea.   HB 13                                                            
guarantees  the status quo in areas  where people are contemplating                                                             
consolidations.   HB 13 says that if there is to be  a consolidation                                                            
alteration  there has to  be a majority vote  by both entities,  the                                                            
service  area and the  surrounding area.   The  bill allows  for the                                                            
consolidation  of  many service  areas  for  administrative  savings                                                            
while  maintaining   a   differential  taxation   rate.     Improved                                                            
subdivisions  with a  higher level  of road service  and areas  with                                                            
more traditional  Alaskan roads with  a lower level of road  service                                                            
can each maintain  their own level  of service.  The bill  last year                                                            
only applied to  areas with 60,000 people or more  and HB 13 applies                                                            
to everyone in Alaska.                                                                                                          
CHAIRMAN TAYLOR asked how HB 13 would impact home rule cities.                                                                  
REPRESENTATIVE  BUNDE said  there  are currently  53 limitations  in                                                            
statute on  home rule cities and HB  13 would add one more  statute.                                                            
CHAIRMAN  TAYLOR  said  he thought  HB  13 would  impact  home  rule                                                            
cities,  and that  the primary  thrust of  HB 13 was  to "go  after"                                                            
unified city/borough governments.                                                                                               
REPRESENTATIVE BUNDE said  unified city/borough governments were the                                                            
primary thrust  of HB 13  but it also would  have an impact  on home                                                            
rule cities.                                                                                                                    
CHAIRMAN TAYLOR asked what that impact would be.                                                                                
REPRESENTATIVE  BUNDE said  there would be  an impact if the  cities                                                            
had service areas.                                                                                                              
CHAIRMAN TAYLOR asked how  home rule cities with service areas would                                                            
be treated differently after the passage of HB 13.                                                                              
REPRESENTATIVE BUNDE said  an alteration or change in a service area                                                            
would require  a majority  vote of the entire  community before  any                                                            
change could take place.                                                                                                        
CHAIRMAN  TAYLOR said  home rule  cities  now have  authority for  a                                                            
differential   tax  structure   but  unified   cities,  because   of                                                            
city/borough  unification, do not.   He asked if HB 13 would  change                                                            
that so unified cities would have a differential tax structure.                                                                 
REPRESENTATIVE   BUNDE  said  unified   cities  might  now   have  a                                                            
differential tax structure.                                                                                                     
Number 376                                                                                                                      
SENATOR THERRIAULT said  last year he was concerned with the expense                                                            
of  a certain  fire  service  area.    He  asked if  this  had  been                                                            
addressed on page 2, lines 19 through 22.                                                                                       
REPRESENTATIVE BUNDE said yes.                                                                                                  
SENATOR THERRIAULT  asked how  the language  worked if there  was an                                                            
existing service  area with a valley portion and a  hill portion and                                                            
the people on the hill  needed their roads sanded, which would be an                                                            
additional  expense.   Would  the  new language  allow  an  existing                                                            
service area  to "carve up a certain  portion and go to the  borough                                                            
assembly and ask  that they pay an extra quarter mill  for something                                                            
of that nature  to allow for the sanding on their  roads because the                                                            
roads down the valley don't need to be sanded?"                                                                                 
REPRESENTATIVE  BUNDE  replied  it  would  not  affect  an  existing                                                            
service  area that  could  subdivide  and a  majority  vote of  both                                                            
entities  would   be  needed  to   subdivide.    HB  13   calls  for                                                            
differential   taxation  if  two   entities  want  to  combine   for                                                            
administrative savings within a subdivision.                                                                                    
SENATOR THERRIAULT  said the mill rate within a service  area is now                                                            
voted on by  the residents of that  area.  If there were  a thousand                                                            
people living in the valley  and 250 people up on the hill, he asked                                                            
if  the people  in  the valley  would  be able  to impose  a  higher                                                            
millage rate on the people up the hill.                                                                                         
REPRESENTATIVE  BUNDE replied yes,  because the entire service  area                                                            
would vote it on.                                                                                                               
SENATOR  THERRIAULT  asked if  Representative  Bunde  would have  an                                                            
objection to adding  language that said something  to the effect of:                                                            
"generated differential  millage rate monies have to be spent within                                                            
the area that generated it."                                                                                                    
REPRESENTATIVE BUNDE replied no.                                                                                                
SENATOR THERRIAULT  said that HB 13  talks about subsets  within the                                                            
service area,  but he did  not know if there  was language  covering                                                            
REPRESENTATIVE  BUNDE said subsets  would still be separate  service                                                            
areas and they  would only be combined to save administrative  fees.                                                            
Subsets  would still  have  a differential  taxation  rate with  the                                                            
intent that  Group A's  level of taxation  be spent  on Group  A and                                                            
Group B's level of taxation be spent on Group B.                                                                                
Number 715                                                                                                                      
CHAIRMAN TAYLOR said this  could be a "real can of worms."  It would                                                            
be difficult  to  draft language  that would  specifically  allocate                                                            
where the funds  were to be spent  within a service area.   He noted                                                            
that  whether  this could  or  should be  done  would  be a  serious                                                            
REPRESENTATIVE  BUNDE thought he had not explained  the intent well.                                                            
He said if  there were two service  areas, Group A and Group  B, and                                                            
they were combined  and had differential taxation  rates, the monies                                                            
assessed on  Group A would be spent  on Group A and monies  assessed                                                            
on Group B  would be spent on Group  B.  There would be no  crossing                                                            
of funds.                                                                                                                       
CHAIRMAN TAYLOR said he was not sure of this.                                                                                   
Number 785                                                                                                                      
MR. JEFFERY BUSH,  Deputy Commissioner, Department  of Community and                                                            
Economic Development (DCED),  started by following up on some of the                                                            
questions asked earlier  in the meeting.  He said the administration                                                            
did not  oppose Sec. 4 of  HB 13 but it was  opposed to the  rest of                                                            
the bill.   Sec. 4 allows  the assembly,  by ordnance, to  establish                                                            
differential  taxation rates  within service  areas and that  can be                                                            
within an existing area.   This is to allow for the consolidation of                                                            
services  areas so  they can combine  and have  differential  rates.                                                            
Another  question  was regarding  the  requirement  that  additional                                                            
assessments be used for  the people who were assessed.  HB 13 allows                                                            
this by saying  it allows for different levels of  taxation to occur                                                            
"for a different  level of services  than provided generally  in the                                                            
service  areas."    The  implication   being  that  when  there  are                                                            
differential  levels of service, a  different differential  rate can                                                            
be assessed.                                                                                                                    
MR. BUSH said  this bill came to the  Governor last year  as HB 133.                                                            
He vetoed it and he still  finds it objectionable.  The objection is                                                            
not to differential  taxation, the  objection is to the rest  of the                                                            
bill, which  the Governor views as  limiting the power of  municipal                                                            
governments and  boroughs by requiring service areas,  which are not                                                            
a government  entity,  to veto powers  at the  borough, which  could                                                            
otherwise   be  exercised   at  the   borough,   level.     Alaska's                                                            
constitution  creates borough  governments  and there  is a  dispute                                                            
over whether the constitution  would even prohibit HB 13 because the                                                            
state cannot  limit the  powers of  boroughs except  if there  is an                                                            
overriding state interest,  and an overriding state interest has not                                                            
been demonstrated in this  case.  An overriding state interest needs                                                            
to be found before  the power of boroughs and municipal  governments                                                            
are limited.                                                                                                                    
MR. BUSH  said the provisions  of HB 13  have already been  provided                                                            
for in  the Anchorage  Charter.  There  is nothing  that HB  13 does                                                            
that could  not be  done at the  local level by  local choice.   The                                                            
administration's  objection  is that  this would  be imposed at  the                                                            
state level on municipal governments.                                                                                           
MR.  BUSH  said  the  philosophy  being  demonstrated   is  somewhat                                                            
inconsistent with the philosophy  that is being otherwise debated in                                                            
the legislature  -  the formation  of borough  governments is  being                                                            
encouraged  and  so  is  the  centralization   of  local  powers  in                                                            
unorganized  borough  into   boroughs.    Those  efforts  are  being                                                            
undercut  by the  arguments  of HB  13  - that  borough governments                                                             
should not be  the center of power and the power should  reside in a                                                            
smaller unit at the local level.                                                                                                
Number 1073                                                                                                                     
CHAIRMAN TAYLOR  said on the philosophical  question, "when  you say                                                            
being debated within these  halls on the expansion and incentives to                                                            
create   borough  governments,"   that  he   did  not  realize   the                                                            
administration shared any of those thoughts.                                                                                    
MR.  BUSH  replied  that  DCED  had  for  many  years  consistently                                                             
supported  those efforts and  he had pointed  out that this  was the                                                            
department's  position.  The administration  has no formal  position                                                            
on that yet.                                                                                                                    
CHAIRMAN TAYLOR said he  was curious as to what the administration's                                                            
position  might be on  the entire  subject.  He  thought this  was a                                                            
subject worthy  of consideration  and discussion  and he would  like                                                            
the  administration  participating.   Chairman  Taylor  asked for  a                                                            
recap on Senator  Therriault's question  on whether the funds  could                                                            
be assessed for  specific services and allocated to  that particular                                                            
portion of the service area.                                                                                                    
Number 1226                                                                                                                     
MR. BUSH said HB 13 implies  that because it allows for increases or                                                            
decreases  of  assessments  based upon  a  different service  for  a                                                            
particular group within  a service area, that the adjustment be made                                                            
on the amount  collected.  There is no requirement  that the service                                                            
area account for an exact dollar for dollar amount.                                                                             
SENATOR THERRIAULT  said if it were  an extra quarter mill  rate, it                                                            
would just be  that, multiplied times the value of  the homes in the                                                            
sub zone, and he felt that  could be accounted for.  He asked if Mr.                                                            
Bush  would see  a problem  with  language  that said,  "except  for                                                            
administrative  expenses,  funds generated  by the  imposition  of a                                                            
differential  tax in a differential  tax zone  within a service  may                                                            
only be used for services within that tax zone."                                                                                
MR. BUSH said his only  concern would be retaining separate accounts                                                            
for  service  areas for  the  same  service.   He  did not  know  if                                                            
accounting  problems would be created  if administrative  costs were                                                            
added.  He thought this  link should be there but he did not know if                                                            
it would be statutorily required.                                                                                               
Number 1380                                                                                                                     
MS. JEAN  WOOD, speaking  via teleconference  from Palmer,  said she                                                            
supported HB 13.   She felt that local control was  the best control                                                            
available and  she thought the people affected should  have a say in                                                            
whether they  wanted to be included  in a service area if  that area                                                            
were  to  be  changed.   At  one  time  the  Mat-Su  Borough  had  a                                                            
differential taxation rate  and when a subdivision in a service area                                                            
wanted  its roads  paved, the  property  owners were  assessed  at a                                                            
different rate than the rest of the service area.                                                                               
MR. JOE  BALASH, staff to  Senator Therriault,  said HB 13  does not                                                            
prohibit  various millage  rates from being  charged within  a given                                                            
service area and it does  not prohibit one group in the service area                                                            
from disproportionately  benefiting  from that assessment.   He said                                                            
it  is  conceivable  that  a  base one  mill  could  be  charged  on                                                            
everyone,  with the  residents  in a given  area  deciding that  the                                                            
wealthy people  up on the hill should be charged an  additional half                                                            
mill  to receive  an additional  service  that only  cost a  quarter                                                            
mill.   The surplus  quarter mill  would be used  to supplement  the                                                            
rest  of the  base.   This is  why legal  services  suggested  that,                                                            
conceptually,  there should be some type of amendment  to state that                                                            
the additional  funds generated  by the  differential taxation  rate                                                            
only be spent within that differential tax zone.                                                                                
CHAIRMAN  TAYLOR  noted  that the  committee  had  received  written                                                            
testimony from  Mr. Jim Norcross of  Willow asking for a  limitation                                                            
where HB  13 says, "or  road service areas  affecting not more  than                                                            
five percent of  the total road miles of the service  area, within a                                                            
two year period."                                                                                                               
SENATOR  THERRIAULT  said he  would  like to  work on  an  amendment                                                            
because he  does not want one area  to impose a higher millage  rate                                                            
on another area and then siphon the funds off.                                                                                  
CHAIRMAN TAYLOR  suggested that Senator  Therriault work  with legal                                                            
services  to clean up the  language in a way  that would not  change                                                            
the overall concept of the bill.                                                                                                
CHAIRMAN TAYLOR  announced that HB  13 would be held until  the next                                                            
committee meeting.                                                                                                              
Number 1619                                                                                                                     
            SJR 22-CONST. AM: JUDICIAL OFFICERS' TERMS                                                                      
SENATOR  DONLEY  said  SJR  22  changes   the  retention  terms  for                                                            
justices.   Terms for the  supreme court would  go from 10  years to                                                            
four years and superior  court terms would go from six years to four                                                            
years.   He said  SJR 22  would have  to be approved  by the  voters                                                            
because it changes the constitution.                                                                                            
SENATOR ELLIS asked "why."                                                                                                      
SENATOR  DONLEY noted  that in the  majority of  states, judges  are                                                            
either  elected or  confirmed by  the legislative  bodies  involved.                                                            
Alaska  is in  the minority  of  states that  has  neither of  those                                                            
processes  but it does have  retention elections.   He said  10 year                                                            
terms  are too  long for  having  a credible  effect  upon a  judges                                                            
performance,  good government demands  a shorter period.   A memo in                                                            
the committee  packet from  the court system  only deals with  those                                                            
states that  have retention  elections, it  does not examine  states                                                            
that elect judges or states  that have a confirmation by legislative                                                            
SENATOR THERRIAULT said  moving from 10 years down to four years was                                                            
a big step and  he was concerned that this would discourage  private                                                            
practice lawyers  from serving in  the judiciary.  The system  would                                                            
end up with a  number of people who have spent their  entire time in                                                            
public  service,  with  little  understanding  of  what  a  judicial                                                            
proceeding costs  clientele, reflecting the way judgments  come down                                                            
and dragging the process  out.  He was concerned that by taking such                                                            
a big step, fewer  people from private practice would  be willing to                                                            
serve in the judiciary where the pay is substantially less.                                                                     
SENATOR DONLEY  said he would not  have a problem with six  and four                                                            
year terms.  He noted that  according to the court system's response                                                            
three other states have six and four year terms.                                                                                
Number 1798                                                                                                                     
MS. STEPHANIE  COLE, Administrative  Director  for the Alaska  Court                                                            
System,  said  the court  system  agrees  with the  Alaska  Judicial                                                            
Council's  assessment  of  SJR 22.    Ms. Cole  made  the  following                                                            
     The  merit selection  and retention  process currently  in                                                                 
     place  in Alaska  is often  sited nationally  as a model,                                                                  
     balancing    judicial    independence     with   judicial                                                                  
     accountability,   balancing  a  judges  ability   to  make                                                                 
     decisions  impartially and without due political  pressure                                                                 
     against the public's important  right to hold their judges                                                                 
     Judicial accountability  is enormously important and there                                                                 
     is nothing  incompatible with judicial accountability  and                                                                 
     judicial  independence.     There  are  three  aspects  of                                                                 
     judicial  accountability   - political,  decisional,   and                                                                 
     behavioral.  When talking  about political accountability,                                                                 
     with reference  to judges, this is the retention  election                                                                 
     process and how judges are  held accountable to the public                                                                 
     by periodic retention elections.   At these elections, the                                                                 
     public  is given a  large amount of  information compiled                                                                  
     and prepared by the Alaska Judicial Council.                                                                               
     Decisional accountability  relates to the issue of whether                                                                 
     a  judge is correct  or incorrect  in a  particular  case.                                                                 
     This  is  primarily  accomplished  through  the appellate                                                                  
     process and through the route of appeal.                                                                                   
     Behavioral  accountability comes  into play when judicial                                                                  
     misconduct  is  an issue,  this  is provided  through  the                                                                 
     judicial  discipline  process and  in Alaska  that is  the                                                                 
     Commission on Judicial Conduct.   It is the court system's                                                                 
     position  that when  retention  periods are  shortened,  a                                                                 
     situation  is created that starts to blur the  distinction                                                                 
     between    political   accountability    and   decisional                                                                  
     accountability.  The current  retention periods are in the                                                                 
     mainstream   of most  states,   and  no  other  state  has                                                                 
     retention  periods  as short  as  listed in  SJR  22.   If                                                                 
     retention  periods are shortened,  a situation is created                                                                  
     where  the judge is  under increased  pressure to rule  in                                                                 
     accord  with the current political  or public atmosphere.                                                                  
     The whole system of government  is structured so this will                                                                 
     not happen.   While the role of legislators is  to respond                                                                 
     in  some  part  to  the  will  of  the  majority   of  its                                                                 
     constituents,  the role of a  judge is very different.   A                                                                 
     very  large part  of what  a judge  is asked to  do is  to                                                                 
     protect  the rights of a minority  against which the  rule                                                                 
     of the  majority should  never be allowed  to prevail.   A                                                                 
     judge  has to apply a set of  facts without regard to  the                                                                 
     public  atmosphere or  will of  the majority.   This is  a                                                                 
     difficult  and often  times unpopular  task.  The current                                                                  
     system  does  allow at  least some  protection  against  a                                                                 
     judge  for being  punished  politically for  a particular                                                                  
     decision  that  he or she  might make.   When  the period                                                                  
     between  retention  elections  is shortened,  it  is  more                                                                 
     likely  that political  campaigns would  be waged against                                                                  
     individual  judges because of single unpopular  decisions.                                                                 
     Deciding  high  profile  cases  always requires  judicial                                                                  
     fortitude  but  is especially  difficult  if there  is  an                                                                 
     eminent retention election.   It would be a backward step,                                                                 
     a  step  toward  deciding  cases  in  favor  of  the  more                                                                 
     powerful litigant  to increase the frequency of  retention                                                                 
     elections.    Another  predictable  result would  be  more                                                                 
     campaigns  against  judges standing  for  election,  since                                                                 
     issues and  tempers would have less time to be  moved from                                                                 
     the  spotlight and  into a  longer term  perspective.   As                                                                 
     campaigns  are mounted  against  judges, judges  have  the                                                                 
     right and they will respond  with counter campaigns - they                                                                 
     are allowed to do this.                                                                                                    
     Throughout  the country today, there are serious  concerns                                                                 
     about  judicial  fund  raising   and campaigning.     Fund                                                                 
     raising   can  compromise  a   judge's  ability  to   rule                                                                 
     neutrally  and to  be perceived  as neutral.   Alaska  has                                                                 
     over 150,000  cases going through  the court system  every                                                                 
     year and  only a hand full of  those are controversial  or                                                                 
     of general  interest to the public,  yet each one of  them                                                                 
     is of  enormous interest to the  people involved in  those                                                                 
     particular cases.  Judges  need to be evaluated at regular                                                                 
     paced  intervals about  how they are  handling all of  the                                                                 
     cases,  not just one or two highly  visible cases.   Every                                                                 
     litigant in the court should  have the confidence that his                                                                 
     or  her case  is being  heard on  the merits,  not on  the                                                                 
     basis  of  public  or  political  pressure  which  can  be                                                                 
     brought to bear on a judge.   The public would be outraged                                                                 
     if the judge took a survey  or political poll to determine                                                                 
     how to rule on a particular  case but SJR 22 does move the                                                                 
     judiciary  in that direction.   The legal system commands                                                                  
     allegiance  only when  the legal system  commands respect                                                                  
     and  it only  commands respect  when the  public believes                                                                  
     judges  are neutral.   It would  be a great  loss if  this                                                                 
     position were eroded.                                                                                                      
     Aside  from  judicial  independence  concerns,  the  court                                                                 
     thinks  the  periods  between  retention  elections  would                                                                 
     discourage qualified applicants.   Shorter periods between                                                                 
     elections increase the likelihood  that a judge would face                                                                 
     an election  challenge.  Right  now judicial salaries  are                                                                 
     falling  relative   to  salaries  in  other  states.    An                                                                 
     experienced, seasoned private  sector attorney may have to                                                                 
     drop his  or her income one half  to two thirds to take  a                                                                 
     judicial   position.    All  of  this  discourages   well-                                                                 
     qualified attorneys from applying for the bench.                                                                           
MS.  COLE  said the  court  system  believes  that  maintaining  the                                                            
current system  and the structural  integrity of the justice  system                                                            
should be  paramount.  She  urged the committee  not to move  SJR 22                                                            
Number 2143                                                                                                                     
SENATOR  THERRIAULT  asked for  a list  of judges  who  came to  the                                                            
judiciary from private practice or the public sector.                                                                           
MS. COLE replied that list could probably be provided.                                                                          
CHAIRMAN  TAYLOR said that  if a judge had  a controversial  case at                                                            
the  end of  his or her  sixth  year term  they might  still face  a                                                            
contentious  retention  election.    When  it  comes  to  decisional                                                            
accountability  and political accountability, unfortunately,  courts                                                            
politically  decide issues.  It is  hoped that cases are  decided on                                                            
legal grounds but this is not always the case.                                                                                  
MS. COLE  said Chairman  Taylor  was correct,  highly controversial                                                             
cases  do arise close  to the  end of  a retention  period, but  the                                                            
system needed  to be balanced.  The constitutional  founders thought                                                            
long and hard  about where the balance should be and  they concluded                                                            
that the terms currently  in place provided for some accountability.                                                            
The current system  is not perfect but it is a good  balance between                                                            
accountability and independence.                                                                                                
CHAIRMAN TAYLOR asked how  accountability is achieved when the first                                                            
chance to vote on the retention  of a supreme court justice is three                                                            
years at  the earliest after  appointment.   "This is assuming  that                                                            
the appointment coincided  with the next two year cycle, it could be                                                            
as  much  as four  and  three  quarter  years before  there  was  an                                                            
opportunity  to vote  on  that justice.   Then  there  is one  other                                                            
opportunity,  and  during  that  period  of time,  a  supreme  court                                                            
justice would  have served 23 to 25 years with an  initial retention                                                            
election, one  retention election  in the middle, and then  deciding                                                            
to withdraw  rather than file for  reelection in their 23rd  or 25th                                                            
year on the bench."                                                                                                             
MS. COLE responded that  the first period had to be long enough so a                                                            
track record could be established,  which would give the public time                                                            
to  evaluate a  judges  performance.   If  there were  an  immediate                                                            
retention election,  voters would  be asked to make a decision  on a                                                            
judge who possibly had  not made a decision yet.  She said a 10-year                                                            
retention  is not  at all  unusual and  is representative  of  other                                                            
TAPE 01-14, SIDE B                                                                                                            
SENATOR  THERRIAULT said  he felt  the six and  four year  retention                                                            
terms suggested by HB 13 were too short for balance.                                                                            
MR.  BILL  COTTON,  Executive  Director   for  the  Alaska  Judicial                                                            
Council, said the judicial  council is a separate independent agency                                                            
in the judicial  branch of government.  The council  is charged with                                                            
two  primary  responsibilities  -  1)  Investigating  and  screening                                                            
judicial  applicants, and  2) Evaluating the  performance of  judges                                                            
and making information available to the voters.                                                                                 
MR. COTTON said there were  a number of reasons the judicial council                                                            
was opposed  to SJR 22.  The council  has opposed bills in  the past                                                            
that made retention  terms six years for supreme court  justices and                                                            
four years  for superior  court judges, rather  than four years  for                                                            
all, which is  the case this year.  The first reason  for opposition                                                            
to  SJR 22  is that  shortening  retention  terms  would  discourage                                                            
highly qualified applicants  from applying for a job because the job                                                            
would  be  less  stable.   This  particularly  applies   to  private                                                            
practitioners  who have  stable practices  with good  incomes.   The                                                            
second reason for oppositions  is that the evaluation focus would be                                                            
taken off  individual judges  and put on a  larger group of  judges.                                                            
Last year over  half of the judges  were up for retention  election,                                                            
with the judicial council  having to evaluate a long list of people,                                                            
making it harder to focus  on the few judges whose evaluation needed                                                            
to be focused  on.  This also makes  it difficult for the  voters to                                                            
be knowledgeable  on each  judge.   The intent of  SJR 22 is  to put                                                            
more focus on  individual judges but the actual practice  may not do                                                            
that. The third reason  for opposition is that SJR 22 would increase                                                            
costs for the judicial  council's evaluation and for balloting.  The                                                            
fourth reason for opposition  is that shortening the retention terms                                                            
would  change  the  balance  between  judicial  accountability   and                                                            
judicial  independence.   The Alaska  Judicial Council  does a  more                                                            
thorough  evaluation  than any  where  in the  country  or world  by                                                            
surveying  police   officers,  jurors,  protection  workers,   court                                                            
employees,  and every attorney  in the state  - 10,000 Alaskans  are                                                            
asked to rate  the judiciary and give  comments.  The council  holds                                                            
public hearings, receives  information from the Court Watch, handles                                                            
salary warrants,  preemptory challenges,  and it looks at  how often                                                            
appeals are  overturned.  Almost all  of this information  is put on                                                            
the Internet where anyone can access it.                                                                                        
MR. COTTON said  the council emphasizes judicial accountability  but                                                            
judicial   independence   is   also  very   important.      Judicial                                                            
independence  is one of the principals  this country was  founded on                                                            
and the founding fathers  wanted judges who would protect the rights                                                            
of citizens even if it  were not what the government wanted.  Judges                                                            
are needed  who are smart and fair  and who decide cases  on the law                                                            
rather than on  whose before them, judges, who to  the best of their                                                            
ability uphold  the constitutional rights of citizens  even if their                                                            
decisions are  not popular.  The judicial  council in its  retention                                                            
evaluations is very concerned  that judges do not decide cases based                                                            
on their own political views.                                                                                                   
MR.  COTTON read  a  quote from  the  constitutional  convention  by                                                            
Delegate Davis.                                                                                                                 
     Now historically, judges  were always appointed until some                                                                 
     time after  the adoption of our Federal Constitution,  and                                                                 
     our  Federal  Constitution  included   that  procedure  in                                                                 
     providing  that  judges are  appointed  and in  fact,  are                                                                 
     appointed  for life.   And, of course,  the theory behind                                                                  
     appointing   judges  for  life  is  that  they  are   once                                                                 
     appointed,  completely independent, and over the  years we                                                                 
     have seen  many times when a  President attempted to  what                                                                 
     we might  call, "pack" the Supreme  Court.  The President                                                                  
     has appointed  his man or his  men with a particular  idea                                                                 
     in mind,  and when  those judges were  appointed, I  think                                                                 
     invariably or at least almost  all the time, the President                                                                 
     in question  has been badly disappointed to find  that his                                                                 
     man followed  what he conceived to be the law  and not the                                                                 
     President's  wishes.   The lifetime tenure  of judges  has                                                                 
     much  to recommend it.   On the other  hand, the lifetime                                                                  
     tenure  of judges  has the  possibility  of being abused.                                                                  
     Any  attorney who  has practiced  law has  seen instances                                                                  
     where a judge appointed  for a lifetime, after serving for                                                                 
     a length of  time, becomes completely unresponsive  to the                                                                 
     will of the  people, refuses to change with the  times and                                                                 
     the  times  do  change.    And  for that  reason,  strict                                                                  
     appointment    with   a   lifetime    tenure,   has    its                                                                 
     disadvantages.   With that in mind then, sometime  shortly                                                                 
     after  the adoption  of the  United  States Constitution,                                                                  
     many of the states started  electing their judges with the                                                                 
     idea  that the  judges  would be  more responsive  to  the                                                                 
     public will.   And the pendulum, as somebody said  a while                                                                 
     ago, swung  clear over to the  other side and we had  very                                                                 
     nearly  all our  judges except  our Federal  judges  being                                                                 
     elected by  the people and for relatively short  terms.  I                                                                 
     grew up in the state of  Idaho and we had elective judges.                                                                 
     Their terms, even the supreme  court judge terms were only                                                                 
     four  years.     The  judge  ran  every  four  years   and                                                                 
     inevitably  it got into politics.  In order to  attempt to                                                                 
     remedy that  situation, the state of Idaho many  years ago                                                                 
     adopted  a nonpartisan  judicial  ballot where  the  judge                                                                 
     runs,  not as  a member  of the  party, but  runs for  the                                                                 
     office.   However, he runs against  some other person  who                                                                 
     aspires to be a judge, and  he runs every four years.  The                                                                 
     result  was that the  judiciary was not  and could not  be                                                                 
     independent,   depending  on   the  whims  of  the   time,                                                                 
     depending  on the decisions a man might have made,  he was                                                                 
     or  was not  retained,  or depending  on how  popular  his                                                                 
     opponent    might   be,   completely    irrespective    of                                                                 
     qualifications.    Now the  elective  system has  much  to                                                                 
     recommend  it, but likewise,  it has much against it.   In                                                                 
     the creation and maintenance  of an independent judiciary,                                                                 
     and  I believe without  qualification,  I believe I  could                                                                 
     say that all  of us here want an independent judiciary,  a                                                                 
     judiciary  that will not be swayed  by the public will  at                                                                 
     any  particular  moment,  a judiciary  that  will  not  be                                                                 
     subject to  political pressure, a judiciary that  will not                                                                 
     be subject  to pressure from  the executive branch of  the                                                                 
     government.  I moved to  Alaska some 16 years ago and from                                                                 
     that  time   to  this  I  have  been  operating   under  a                                                                 
     judiciary,  which was appointive.  However, appointed  for                                                                 
     a  very short  term of  four years,  and I  am willing  to                                                                 
     state flatly in my opinion that system will not work.                                                                      
MR. COTTON  said the  constitutional convention  specifically  voted                                                            
down, by a large majority,  a proposal to reduce the tenure terms of                                                            
supreme court  justices to  six years and  they also discussed  four                                                            
year terms.   Mr. Cotton  urged the committee  to discuss the  issue                                                            
MR.  COTTON said  that  any  system based  on  people  would not  be                                                            
perfect, there  would be mistakes and limitations.   But the council                                                            
feels  the current  systems  is  a good  balance  and  he urged  the                                                            
committee to not pass SJR 22.                                                                                                   
Number 1968                                                                                                                     
CHAIRMAN TAYLOR said he takes great pride in Alaska's judiciary, he                                                             
thinks it is one of the finest in the United States but he also                                                                 
finds it somewhat incredible that:                                                                                              
     "while  embroiled in the middle  of a campaign in 1998,  I                                                                 
     watched my superior court  first make a determination that                                                                 
     campaign finance  laws were unconstitutional.   It took my                                                                 
     supreme  court about three  days to move  on that one  and                                                                 
     act.  During  which period of time there was a  window, we                                                                 
     all remember that one, when  you could actually go out and                                                                 
     solicit for  different amounts of money, then  that window                                                                 
     closed   with  the   supreme's  making   a  decision   and                                                                 
     immediately  following that,  I watched other people  file                                                                 
     suits  that  would  have  significant   impact  upon  that                                                                 
     election if they were acted  upon.  You know something, it                                                                 
     took them about a year and  one half to even find the time                                                                 
     for  judges  not to  be  on vacation,  for  judges  to  be                                                                 
     available, for judges not  to grant continuances one after                                                                 
     another.    And  these  very  same  people  seem  to  have                                                                 
     absolutely  no comprehension  of what  the current Alaska                                                                  
     Public Offices  Commission and ethics requirements  are on                                                                 
     people  who volunteer  to serve at a  range today that  is                                                                 
     somewheres  beneath the poverty level.  At least,  I think                                                                 
     my  family could certainly  qualify today  for Denali  Kid                                                                 
     Care,  I think  the  salary that  I  receive is  at  least                                                                 
     somewheres  below the  200 percent of  poverty level.   At                                                                 
     the same  time, there seems to  be little appreciation  or                                                                 
     contemplation  of  what the role  is of  the judiciary  in                                                                 
     righting  wrongs during the political  campaign.  Instead                                                                  
     the  continued  - oh, we'll  put that  one  off - justice                                                                  
     delayed  is  justice  denied.   I have  members  of  major                                                                 
     communities   that  have  come  to  me  that  have   cases                                                                 
     currently  pending that were  argued over three years  ago                                                                 
     and  they still  haven't received  an opinion  out of  the                                                                 
     supreme   court.    And  that   involves  major  contract                                                                  
     disputes, the city of Anchorage  as a consequence, they've                                                                 
     had to come up with a working  solution in between because                                                                 
     they don't have a yes or  a no to their question.  This is                                                                 
     costing them hundreds of  thousands of dollars.  They seem                                                                 
     to be  frustrated at  that, I share  that frustration.   I                                                                 
     know how  it has affected the  politics within this  state                                                                 
     when this court has failed  to act, yet chosen in the same                                                                 
     campaign  to act expeditiously  when  they thought it  was                                                                 
     important  for them to act.  I really have come  back down                                                                 
     to the place  where I really am at the opinion  that maybe                                                                 
     it is high time that some  of the folks in the ivory tower                                                                 
     found out what it's like  to rub shoulders with the masses                                                                 
     a little more often.  And  if it's six years or four years                                                                 
     or whatever  if that happens  to hit unfortunately when  a                                                                 
     hot case is  around, that's part of the luck of  the draw.                                                                 
     And do I want  to see judges raising $2 million  to go out                                                                 
     and do campaigns,  no I really don't want that  system but                                                                 
     maybe  I want  a judiciary  a  little more  sensitized  to                                                                 
     those  of us who  must comply  with some  of the laws  and                                                                 
     their interpretations  of some of these laws.   Maybe they                                                                 
     ought to join that fray  for a little while and get a true                                                                 
     appreciation  of it, cause this  would certainly do  that.                                                                 
     They would  get back to the table a little more  quickly I                                                                 
     think.   But that's  just a comment on  my part, that's  a                                                                 
     level  of frustration  I have  with the  system.  Whether                                                                  
     this would,  in fact, help that  or not that's, as Dennis                                                                  
     Miller  would say, that's just  my opinion and I could  be                                                                 
SENATOR DONLEY  said he shared the same concerns as  Chairman Taylor                                                            
with the  whole issue.   He finds  it incredible  that the  judicial                                                            
council recommended  all the existing  members of the supreme  court                                                            
to be confirmed  or retained this year when some of  the judges have                                                            
had cases pending  for over two years  without a decision.   He does                                                            
not understand  how the judicial council, in good  conscience, could                                                            
say  those people  were  doing  their job  properly.    He said  the                                                            
constitution's mandate  of informing the public and representing the                                                            
public interest  is not being met.  Senator Donley  said the council                                                            
had ignored  his request  to comply with  its own ethical  standards                                                            
regarding the  membership voting on  issues, it ignored his  request                                                            
to make available to the  public the outstanding warrants questioned                                                            
by submerging the information  on the web site so that people had to                                                            
know  exactly where  to look  for the  information.   He does  think                                                            
there  should  be  a  balance  between  judicial  independence   and                                                            
accountability  but right  now the  judiciary  leans totally  toward                                                            
independence  with  no  accountability.    SJR  22  is  logical  and                                                            
consistent,  especially  with  six  years  for  the  supreme  court.                                                            
Senator Donley  said the  judicial council  had also failed  to hold                                                            
some judges  accountable for injecting  their own political  beliefs                                                            
into the  decision process.   "All you have  to do is juxtapose  the                                                            
Best  decision  against the  opinions  that  have been  coming  down                                                            
trying  to   utilize  the   powers  of  the   executive  branch   in                                                            
appropriation,  to  see that  they are  entirely  inconsistent  with                                                            
their own  internal decisions."   He  said the  Best opinion  was an                                                            
outrage, it was a very  lousy piece of judicial work and the council                                                            
failed  to hold them  accountable  for that  work.   If this is  the                                                            
state  of law in  Alaska,  then things  coming out  of the  superior                                                            
courts cannot be reconciled  regarding the right to privacy with the                                                            
Best  opinion.   The  right  to privacy  and  the Best  opinion  are                                                            
completely inconsistent  and the judicial council failed to hold the                                                            
judiciary  accountable  for that inconsistency,  which  can only  be                                                            
based on political belief.                                                                                                      
MR. COTTON  said the judicial  council gathers  more information  on                                                            
all aspects  of how judges do their  work than anywhere else  in the                                                            
United States.   The judicial council  presents a tremendous  amount                                                            
of information  to council members and the voters,  and with regards                                                            
to  the  Best  case,   council  members  seriously  considered   all                                                            
information  and concluded  the Best  case had not  been based  on a                                                            
judge's political whim.   Mr. Cotton agreed that judicial delay is a                                                            
problem and  the council  has addressed this  issue over the  years.                                                            
The council has  asked the supreme court for briefings  on how it is                                                            
addressing  delay problems,  and the  supreme court  has now  issued                                                            
time standards  for the trial  and appellate  courts.  Developing  a                                                            
case  management  system  that  would  give  the  council  competent                                                            
information  would  also  be a  step  forward  and the  council  has                                                            
considered  proposing  that  the  salary  warrant  information  time                                                            
period be shortened.   The council is now considering  how it can do                                                            
better case processing.                                                                                                         
MR. COTTON  emphasized that  council members  are from all  sorts of                                                            
perspectives  and have concluded that  Alaska has a good  system and                                                            
judges are doing a good job.                                                                                                    
SENATOR THERRIAULT  suggested that  in order to be retained  a judge                                                            
should be approved by 55 to 60 percent of the voters.                                                                           
MR. COTTON  felt that raising the  level would assure that  if there                                                            
were  any controversy  about  a judge  that  judge would  be out  of                                                            
office, and he would not be in favor of that.                                                                                   
MR.  BRUCE  WEYHRAUCH,  private  practice  attorney,  president  and                                                            
member of  the Board of  Governors for the  Alaska Bar Association,                                                             
said he  felt SJR 22 was  important enough  for him to speak  on his                                                            
own  behalf.   He said  judicial  independence  is critical  to  the                                                            
constitutional  form of government.   When  the framers of  Alaska's                                                            
constitution  had the opportunity  to review what other states  were                                                            
doing, they  adopted a  constitution that  struck a balance  between                                                            
what  other states  had  done  with lifetime  appointments  and  the                                                            
retention  election process.   As  an attorney,  Mr. Weyhrauch  felt                                                            
that Alaska's  judges were very good.  In benchmark  conferences and                                                            
open forums judges hear  the public and this is something that needs                                                            
to continue, it helps address  some of the public's concerns and the                                                            
"ivory  tower issues."   There will  always be  tension between  the                                                            
legislature,  the executive  branch, and the  judiciary and  that is                                                            
the  way the  system was  meant to  be.   Mr. Weyhrauch  trusts  the                                                            
judiciary system and he  imparts that trust to his clients by saying                                                            
that judges are  doing the best they can based on  law and precedent                                                            
and  despite  a  lot   of  political  pressure,  courts   rule  with                                                            
precedent.  The principal  decision a court makes should be based on                                                            
existing law so  that the private sector can operate  with a certain                                                            
amount  of  certainty.    Mr.  Weyhrauch   said  that  if  retention                                                            
elections were shortened,  a person in the private sector would have                                                            
to get rid of his or her  client base and business before becoming a                                                            
judge, and  the shorter the  retention process  the less likely  the                                                            
judiciary would be considered a livelihood option.                                                                              
SENATOR  DONLEY  asked what  percentage  of  judge's come  from  the                                                            
private sector.                                                                                                                 
MR. WEYHROCK said  most come from public service but  it is a "mixed                                                            
bag."   He  said many  attorneys'  general see  the  judiciary as  a                                                            
career step.                                                                                                                    
Number 1143                                                                                                                     
SENATOR  DONLEY said  Mr. Weyhrauch's  response  would discount  the                                                            
argument that  people would not come  to the judiciary because  of a                                                            
reduction  in  income.    He  asked  if  income   should  measure  a                                                            
candidate's viability to be a good judge.                                                                                       
MR.  WEYHRAUCH  said  the  majority  of  people  interested  in  the                                                            
judiciary want  to work in this area  and have proven their  ability                                                            
to look at the law and be impartial.                                                                                            
SENATOR DONLEY  said consistency is wanted from the  judiciary and a                                                            
public safe guard is needed  to assure consistency and 10 year terms                                                            
do not enforce consistency.   He asked if a six-year review would be                                                            
MR. WEYHRAUCH  said there is a mechanism  in the superior  court for                                                            
consistency  through  appeal  if  it  is  felt  there  has  been  an                                                            
inconsistent  result  with  precedent.   In  the supreme  court  the                                                            
mechanism exists  for moving to reconsideration or  for appealing to                                                            
an even  higher court  if there  are constitutional  grounds  for an                                                            
appeal.   He  was concerned  that  a judge  could be  thrown out  of                                                            
office because of a disagreement  over a decision, when in their own                                                            
intellectual capacity and  through their own analysis of the law and                                                            
precedent of the facts,  they applied the law as best as they could.                                                            
SENATOR DONLEY  said the delegates to the constitutional  convention                                                            
determined that the existing  retention terms were appropriate terms                                                            
of office but he wondered  if the delegates had ever envisioned some                                                            
of the  things  the courts  have done  in a very  activist  creative                                                            
manner  over the past  several decades.   He  said the constitution                                                             
needed to be  reexamined on a regular  basis to see if it  is really                                                            
working.  He thought that  if the delegates had envisioned the types                                                            
of decisions  crossing  the  separation of  powers  they might  have                                                            
reevaluated the terms.                                                                                                          
Number 813                                                                                                                      
JUSTICE RABINOWITZ made the following comments:                                                                                 
     Thank you very much for  giving me the opportunity to meet                                                                 
     with you.  I just came from  Bartlett [Hospital] so that's                                                                 
     my excuse if I'm a little  disjointed.  I've been apprised                                                                 
     of what's  on the agenda, the  periodic evaluation of  not                                                                 
     only the supreme court,  the superior court judges, but by                                                                 
     legislation, and the court  of appeals.  Present terms are                                                                 
     ten, six, and eight for  the court of appeals.  Let me say                                                                 
     this,  what  we're  dealing  with  is  the  constitution.                                                                  
     You've  alluded  to  1955, the  founding  fathers  had  so                                                                 
     called   expert  advise   on   the  Article   IV  of   the                                                                 
     constitution.    I've  fortunately  devoted  and  had  the                                                                 
     privilege  of surviving retention elections very  closely,                                                                 
     serving in the Alaska judiciary  since 1960, and I'm still                                                                 
     serving  in the capacity  as a pro-tem  or senior justice                                                                  
     and helping  out at both levels and it's a great  treat to                                                                 
     work  at all levels  of the  court system.   When I  first                                                                 
     came on in  1960 and then was elevated because  of Justice                                                                 
     Aaron's  defeat by the  bar association  in the retention                                                                  
     election  to the  supreme court,  that's  how the vacancy                                                                  
     occurred.   I  became familiar  with the  workings of  the                                                                 
     judicial  council.   This is a fundamental  document  that                                                                 
     we're  talking   about,  this  is  our  basic  law.    And                                                                 
     naturally  in 1955 the  founding fathers  didn't know  how                                                                 
     the  judicial article  was going to work.   Well, you  can                                                                 
     dismiss this as ego blowing  but I think the Alaska system                                                                 
     has  matured  and  it's  an  incredible   tribute  to  the                                                                 
     flexibility that was built  into Article IV - that Article                                                                 
     IV  has  functioned.    I  know  you're  upset  with  some                                                                 
     opinions  but  I've  seen  the  growth   of the  judicial                                                                  
     council,  I happened to be ex  officio chair when we  were                                                                 
     struggling  with  how  to  make the  council  work.    The                                                                 
     council to  this day has matured, where it is  leading the                                                                 
     Missouri states  in how to get an informed electorate  and                                                                 
     how to  get a vote on the performance  of judges at  these                                                                 
     various  levels.  Now this is  a compromise, you all  know                                                                 
     that,  we  don't have  the  federal  system  and lifetime                                                                  
     appointment,   we've  given  the  voters  a  say   in  the                                                                 
     performance  of the judiciary.   There is no other state,                                                                  
     and I  really will defend this,  that gives the voters  as                                                                 
     much information  as we do and as close an analysis  as we                                                                 
     do  on  the performance   of the  various  judges  at  the                                                                 
     various  levels that  have to stand  periodically.  Now  I                                                                 
     assume you've  heard the arguments as to why we  shouldn't                                                                 
     shorten  the opinion.   One I  think will  send the  wrong                                                                 
     signal  to those 20  or so Missouri  states that have  the                                                                 
     plan - that there's something  wrong with our plan.  Is it                                                                 
     working?   Do  the voters  get  enough information?    Why                                                                 
     change  it?     Is  there  a  real  need  to  change   the                                                                 
     fundamental  doctrine  of our government  because some  of                                                                 
     the   opinions   don't  sit   well?     You've  mentioned                                                                  
     inconsistent opinions.   My god, does the ordinary citizen                                                                 
     know  what the  supreme  court has  done over  a ten  year                                                                 
     period?  No.   Is the supreme court aware of what  they've                                                                 
     done?   Sure.  We have the Doctrine  of Stare Decisis  and                                                                 
     that's a very powerful doctrine.   And let me tell you, in                                                                 
     our  internal   debates,  we're  very  very  hesitant   to                                                                 
     overrule  decisions  just  on a  whim of  public opinion.                                                                  
     You're going  to get bad opinions once-in-awhile,  how can                                                                 
     you  get  uniformity  when  you  have  60  judges  and  60                                                                 
     different   philosophies,   60   different   backgrounds,                                                                  
     different  factual contexts,  eventually  you'll get  some                                                                 
     inconsistency   and  it's  up  to the  supreme   court  to                                                                 
     straighten  it  out.   But it's  hard  enough to  get  the                                                                 
     information  to the  ordinary  voter and  if you truncate                                                                  
     everyone  in  to one  period,  it's  going  to lead  to  a                                                                 
     laundry  list that's going to  make it meaningless in  the                                                                 
     election  pamphlet and the information  from the judicial                                                                  
     council  gets out to  the voter.  My  plea with you is  if                                                                 
     it's not [broken] don't  change it.  This is the lifeblood                                                                 
     of the  Alaska government.   This is  an article that  has                                                                 
     worked.  I  know you say, dismiss it, Rabinowitz  has been                                                                 
     there  too long, he's part of  the system.  But I've  seen                                                                 
     the  system mature.   Article IV has  worked brilliantly.                                                                  
     And  of the  22 or 24-merit  selections,  merit retention                                                                  
     states,  we  seem  to be  guiding  them  in the  field  of                                                                 
     representative  democracy.  We're the one state  that lead                                                                 
     the way in evaluation and  getting information back to the                                                                 
     electorate.  I don't think  we should confuse it by adding                                                                 
     to  the laundry  list, adding  to the costs  and it  might                                                                 
     discourage,  might discourage  the practitioner  who  says                                                                 
     every four  years, I'm not going to do that and  give up a                                                                 
     great  practice.    We  need  a balance  between  private                                                                  
     practitioners,  public  practitioners  and I  think  we're                                                                 
     getting that.                                                                                                              
     What  I said  I would be  proud of  is the  growth of  the                                                                 
     judicial  council,  again the one  thing I  would urge  is                                                                 
     this is the  constitution that we're dealing with  and I'd                                                                 
     be slow  to change it  if it's working  or to recommend  a                                                                 
     change.   I don't see any real  hard significant evidence                                                                  
     that the periodic  evaluations we have now are  failing to                                                                 
     do what we're  attempting to do.  I think given  the broad                                                                 
     mandate,  you should  allow us to continue  with the  time                                                                 
     frames  we  have  until  it's   shown  it  really  is  not                                                                 
     performing  the  function that  we're trying  to achieve.                                                                  
     But  we've gone  a long  way since  1960 and  Alaska is  a                                                                 
     leader  in this  field and  I wouldn't  want  to send  the                                                                 
     wrong  signals to the  other Missouri  states, I wouldn't                                                                  
     want to  unduly complicate and  dilute the system we  have                                                                 
     now.  That's  my plea to you Mr. Chair and the  committee.                                                                 
JUSTICE  RABINOWITZ  said  it had  been  exciting  to see  what  the                                                            
council has done.   He was chairman four times and  during that time                                                            
there  were intense  discussions  on how  to make  the constitution                                                             
work.  He felt Alaska's  constitution had been working well and that                                                            
it  had been  a  brilliant  success.    Alaska has  a  corrupt  free                                                            
judicial system,  some judges miss the mark but most  do not and the                                                            
low  appeal  rate   confirms  this,  which  is  a  tribute   to  the                                                            
scholarship of the sitting judges.                                                                                              
SENATOR DONLEY  said he was concerned  about the two and  three year                                                            
court delays.  He asked if this was a new phenomenon.                                                                           
JUSTICE  RABINOWITZ  said  when  he was  "chief"  he  proposed  time                                                            
standards  for  the  supreme  court  but he  could  never  get  them                                                            
adopted.  Now for the first  time, stringent internal standards have                                                            
been adopted to get the  opinions out.  "Your six month legislation,                                                            
we tried to  abide by and most of  the time when I was on  the court                                                            
we adhered  to the six month deadline.   The trouble was  if you got                                                            
your opinion  out on a very complicated  case, say I was  assigned a                                                            
direct  case, and  you  got it  out within  six months  and  someone                                                            
disagreed  with it there  was no internal  hammer to make the  other                                                            
justices  to get out  his concurs  or her decent.   And that's  what                                                            
delayed the  opinions.  Now I understand  there are one or  two real                                                            
clinkers  that are  around  there  for three  years  now and  they'd                                                            
better look  at that.  But for the  most part, we do strive  to meet                                                            
that  six-month  deadline  and  even beat  it.    We've got  a  fast                                                            
calendar  now on 'MO'S  and J's'  and I think  they're improving  in                                                            
this area.   But  you've identified  an Achilles'  heel and  that is                                                            
there  haven't been  stringent internal  time standards.   But  they                                                            
have them  for the first  time now they adopted  them.  I'm  looking                                                            
forward to good faith adherence to them."                                                                                       
TAPE 01-15, SIDE A                                                                                                            
Number 001                                                                                                                      
SENATOR DONLEY  asked why the voters guide did not  have information                                                            
about  how many  times a  judge had  not complied  with the  warrant                                                            
requirement or about current delay.                                                                                             
JUSTICE RABINOWITZ  said the  judicial council  should take  up that                                                            
suggestion.  He  said this information had not been  tracked, but it                                                            
would be another  way to get judges,  who are slow, to clean  up his                                                            
or  her act  because they  would  not want  this information  to  go                                                            
before the  electorate.  There is  no reason this information  could                                                            
not be collected and could be a recommendation.                                                                                 
Number 150                                                                                                                      
CHAIRMAN TAYLOR  said the information  had been compiled  but it was                                                            
only  accessible  through  the Internet  and  only accessible  if  a                                                            
person knew all the steps to take.                                                                                              
MR. LES GARA said he had  practiced law in Alaska since 1988 and has                                                            
had the privilege of going  through Alaska's constitutional history.                                                            
 He hoped the legislature  would not disrupt the balance that the 55                                                            
delegates to the  constitutional convention came to  without reading                                                            
through the debates  first.  The delegates spent the  good part of a                                                            
year researching  what every other state in the country  had done to                                                            
try and  insure impartiality  and accountability  of the  judiciary.                                                            
Mr.  Gara  felt  they  struck  a wonderful  balance.    One  of  the                                                            
delegates,  Mr. George McLaughlin,  said "the more you make  a judge                                                            
run the more  you threaten to pressure  a judge to render  decisions                                                            
that are 'politically  correct.'"   If judges were politicians  they                                                            
would run  every four  years but they  are not and  that is  why the                                                            
system of  letting them run  every six, eight,  and ten years  makes                                                            
sense.   During  the  last  election there  were  20 judges  on  the                                                            
ballot, and Mr.  McLaughlin heard many complaints  about there being                                                            
too many people on the  ballot at one time for an informed decision.                                                            
If judges were  to run every four years there would  be 40 judges on                                                            
the ballot  at one  time, making  it very  hard for  voters to  make                                                            
intelligent decisions.                                                                                                          
MR. GARA  said he felt  that judicial delay  should be addressed  in                                                            
another bill and should not be included with retention terms.                                                                   
MR. GARA noted  that Alaska has been pointed out by  other states as                                                            
a shining light in this area.  He said Alaska's judiciary is the                                                                
most impartial and independent judiciary in the nation and the                                                                  
constitutional system should not be altered.                                                                                    
SENATOR DONLEY moved to amend SJR 22, lines 11 and 12 to read:                                                                  
     every  sixth  [TENTH]  year [,  AND  EACH  SUPERIOR  COURT                                                               
     JUDGE, EVERY FOURTH YEAR].                                                                                               
SENATOR DONLEY said this amendment would be consistent with the                                                                 
states of Arizona, Kansas, and Oklahoma.                                                                                        
CHAIRMAN TAYLOR asked if there was an objection to the amendment.                                                               
There being no objection, amendment 1 passed.                                                                                   
Number 851                                                                                                                      
SENATOR DONLEY said for the record:                                                                                             
     I think  in trying to  seek a balance  here, I understand                                                                  
     the  argument that  having longer  terms  can help reduce                                                                  
     political   influence.    At   the  same  time,  lack   of                                                                 
     accountability   can increase  political  influence   too.                                                                 
     Right now, I think the balance  teeter totters a little to                                                                 
     far to the lack of accountability.   I think that over the                                                                 
     last 50 years the notion  of how judges behave and act has                                                                 
     changed  rather dramatically.   We went through the  years                                                                 
     of  the Warren  Court and the  vision that,  the sense  or                                                                 
     understanding  of the judicial branch that was  present in                                                                 
     the  early  1950's  or the  mid  50's, I  think  is  quite                                                                 
     different  than reality  today.  I think  there are a  lot                                                                 
     more political agendas on  the part of our judiciary today                                                                 
     than  we saw  in the  50's.  It  stemmed  really from  the                                                                 
     activist  courts of the 60's  and lead us to where we  are                                                                 
     today  with a much  more active judiciary,  possibly  with                                                                 
     the exception  of our newer members of the slowly  evolved                                                                 
     unto  our United  States Supreme  Court,  which have  come                                                                 
     from  more conservative  presidents.   So that I do  think                                                                 
     there  is a different  situation today  than was found  in                                                                 
     the   50's   as  far   as  the   general   impression   or                                                                 
     understanding of how the  judiciary works or what the role                                                                 
     of  a judge or  justice in society  is.   I think to  help                                                                 
     temper  that political  influence  I think  that bringing                                                                  
     these  terms  down  will  actually  help  make  them  less                                                                 
     political  rather than  more because of  the shift in  how                                                                 
     they generally  operate compared to how they did  50 years                                                                 
     I appreciate  the arguments that  have been made, I  think                                                                 
     they're influential  and good credible arguments.   At the                                                                 
     same  time when you  factor in the  societal changes  that                                                                 
     have occurred  since the constitution was drafted  and the                                                                 
     fact  that many  other states  are functioning  very  well                                                                 
     with shorter  terms that I think this is overall  the best                                                                 
     public policy decision.                                                                                                    
SENATOR ELLIS asked about the status of SB 161.                                                                                 
CHAIRMAN  TAYLOR  responded  that  it would  be  heard at  the  next                                                            
SENATOR  DONLEY  moved  CSSJR  22  from  committee  with  individual                                                            
SENATOR ELLIS  objected.  He thought this was a premature  action in                                                            
light of the testimony  and given the fact that SB 161 was coming to                                                            
the committee.  He asked  to have CSSJR 22 considered in the context                                                            
of SB 161 since  SB 161 would address  some of the problems  brought                                                            
up during this meeting.                                                                                                         
SENATOR THERRIAULT said  he would also like CSSJR 22 held because he                                                            
had requested information  from Ms. Cole and he would like to review                                                            
it before passing the bill out of committee.                                                                                    
SENATOR DONLEY withdrew  his motion to move CSSJR 22 from committee.                                                            
There  being no  further  business  to come  before  the  committee,                                                            
CHAIRMAN TAYLOR adjourned the meeting at 3:34 p.m.                                                                              

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