Legislature(2013 - 2014)BELTZ 105 (TSBldg)

02/24/2014 01:30 PM JUDICIARY

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                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                       February 24, 2014                                                                                        
                           1:31 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator John Coghill, Chair                                                                                                     
Senator Lesil McGuire, Vice Chair                                                                                               
Senator Fred Dyson                                                                                                              
Senator Donald Olson                                                                                                            
Senator Bill Wielechowski                                                                                                       
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 108                                                                                                             
"An Act relating to the confidentiality of certain records of                                                                   
criminal cases; and providing for an effective date."                                                                           
     - HEARD & HELD                                                                                                             
SENATE BILL NO. 171                                                                                                             
"An Act relating to multidisciplinary child protection teams;                                                                   
and relating to investigation of child abuse or neglect."                                                                       
     - HEARD & HELD                                                                                                             
SENATE JOINT RESOLUTION NO. 21                                                                                                  
Proposing amendments to  the Constitution of the  State of Alaska                                                               
to increase  the number  of members on  the judicial  council and                                                               
relating to  the initial  terms of new  members appointed  to the                                                               
judicial council.                                                                                                               
     - HEARD & HELD                                                                                                             
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB 108                                                                                                                  
SHORT TITLE: LIMIT PUBLIC ACCESS TO CRIMINAL RECORDS                                                                            
SPONSOR(s): SENATOR(s) DYSON                                                                                                    
01/22/14       (S)       PREFILE RELEASED 1/10/14                                                                               
01/22/14       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/22/14       (S)       JUD, FIN                                                                                               
02/24/14       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
BILL: SB 171                                                                                                                  
SHORT TITLE: MULTIDISCIPLINARY CHILD PROTECTION TEAMS                                                                           
SPONSOR(s): SENATOR(s) COGHILL                                                                                                  
02/12/14       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/12/14       (S)       JUD                                                                                                    
02/24/14       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
BILL: SJR 21                                                                                                                  
SHORT TITLE: CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL                                                                          
SPONSOR(s): SENATOR(s) KELLY                                                                                                    
02/10/14       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/10/14       (S)       JUD                                                                                                    
02/14/14       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/14/14       (S)       Heard & Held                                                                                           
02/14/14       (S)       MINUTE(JUD)                                                                                            
02/17/14       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/17/14       (S)       Scheduled But Not Heard                                                                                
02/21/14       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/21/14       (S)       Heard & Held                                                                                           
02/21/14       (S)       MINUTE(JUD)                                                                                            
02/24/14       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
WITNESS REGISTER                                                                                                              
CHUCK KOPP, Staff                                                                                                               
Senator Fred Dyson                                                                                                              
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Introduced SB 108 on behalf of the sponsor.                                                               
RYNNIEVA MAAS, Staff                                                                                                            
Senator John Coghill                                                                                                            
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Introduced SB 171 on behalf of the sponsor.                                                               
JAN RUTHERDALE, Chair                                                                                                           
Children's Justice Act Task Force                                                                                               
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Provided supporting testimony on SB 171.                                                                  
SUZANNE DIPIETRO, Executive Director                                                                                            
Alaska Judicial Council                                                                                                         
Alaska Court System                                                                                                             
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Testified on SJR  21 and described the duties                                                             
and function of the Alaska Judicial Council.                                                                                    
FRITZ PETTYJOHN, representing himself                                                                                           
POSITION STATEMENT: Testified in support of SJR 21.                                                                           
ALEXANDER O. BRYNER, representing himself                                                                                       
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT: Testified  on SJR  21 and  urged caution  in                                                             
changing the composition of the Alaska Judicial Council.                                                                        
ELAINE ANDREWS, representing herself                                                                                            
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Testified in opposition to SJR 21.                                                                        
MICHAEL PAULEY, Alaska Family Action (AFA)                                                                                      
Alaska Family Council (AFC)                                                                                                     
POSITION STATEMENT: Testified in support of SJR 21.                                                                           
TENA WILLIAMS, representing herself                                                                                             
Ketchikan, Alaska                                                                                                               
POSITION STATEMENT: Testified in opposition to SJR 21.                                                                        
ACTION NARRATIVE                                                                                                              
1:31:37 PM                                                                                                                    
CHAIR  JOHN   COGHILL  called   the  Senate   Judiciary  Standing                                                             
Committee meeting  to order at  1:31 p.m.  Senators Wielechowski,                                                               
Dyson,  Olson, and  Chair Coghill  were  present at  the call  to                                                               
         SB 108-LIMIT PUBLIC ACCESS TO CRIMINAL RECORDS                                                                     
1:32:46 PM                                                                                                                    
CHAIR  COGHILL announced  the consideration  of SB  108. "An  Act                                                               
relating to  the confidentiality  of certain records  of criminal                                                               
cases; and providing  for an effective date." This  was the first                                                               
1:32:54 PM                                                                                                                    
SENATOR DYSON,  sponsor of  SB 108,  informed the  committee that                                                               
this was  one of several  criminal justice issues he's  worked on                                                               
for several years.  The bill says that a person  whose case never                                                               
went to trial or one that  resulted in acquittal would have their                                                               
case  removed from  CourtView after  90 days.  The records  would                                                               
still be  available to attorneys  and law enforcement,  but would                                                               
not be available to the public.                                                                                                 
He  reported  that he's  tried  to  get  the last  two  attorneys                                                               
general  and  the Department  of  Law  to  take  on the  task  of                                                               
updating the criminal  justice code, but on this  issue there had                                                               
been  no progress.  He directed  attention  to a  handout in  the                                                               
packet  from  the Alaska  Justice  Forum  that talks  about  this                                                               
CHAIR  COGHILL   recognized  that  Senator  McGuire   joined  the                                                               
1:37:23 PM                                                                                                                    
CHUCK  KOPP,  Staff,  Senator  Fred   Dyson,  introduced  SB  108                                                               
speaking   to   the   following  sponsor   statement:   [Original                                                               
punctuation provided.]                                                                                                          
     SB  108   seeks  to  strengthen  privacy   and  liberty                                                                    
     interests  of persons  by designating  confidential (as                                                                    
     defined in  Administrative Rule of Court  37.5) certain                                                                    
     court records  associated with dismissed  and acquitted                                                                    
     charges. SB 108 would make  court records of a criminal                                                                    
     case  confidential if  90 days  have  elapsed from  the                                                                    
     date of acquittal  or dismissal, and 1)  the person was                                                                    
     acquitted  of all  charges filed  in the  case; 2)  all                                                                    
     criminal   charges  against   the   person  have   been                                                                    
     dismissed; or  3) the person  was acquitted of  some of                                                                    
     the  charges in  the  case, and  the remaining  charges                                                                    
     were dismissed.                                                                                                            
     SB  108 does  not pose  any restriction  to police  and                                                                    
     prosecution  ability  to   access  arrest  records  and                                                                    
     charging documents.  It does not remove  information in                                                                    
     the  federal National  Crime Information  Center (NCIC)                                                                    
     database, or  in the  Alaska Public  Safety Information                                                                    
     Network (APSIN)  state database,  and would  not render                                                                    
     information already in the public domain confidential.                                                                     
     CourtView,  the  Alaska  Trial Courts  online  publicly                                                                    
     accessible  database, provides  exceptional access  for                                                                    
     persons seeking  information on the status  of criminal                                                                    
     and civil  cases, the nature of  criminal charges filed                                                                    
     against persons,  and the final outcome  of litigation.                                                                    
     CourtView  indefinitely   shows  arrest   and  charging                                                                    
     documents  for  persons  who were  never  convicted  or                                                                    
     incarcerated,  and  is  an unrestricted  site  allowing                                                                    
     anyone to  use the database  to screen any  person, for                                                                    
     any reason. In spite of  CourtView user warnings that a                                                                    
     charge  is  not to  be  considered  a conviction,  this                                                                    
     public posting of  a person's name and  charges has had                                                                    
     significant    deleterious   effects    on   employment                                                                    
     prospects,   ability  to   find   housing,  and   other                                                                    
     professional   and  personal   opportunities  of   many                                                                    
     By  very definition,  a  person is  not  a criminal  if                                                                  
     acquitted at  trial, or if  their case is  dismissed by                                                                    
     the prosecution and not refiled  in a timely manner. In                                                                    
     American  jurisprudence, we  are all  to be  considered                                                                    
     innocent until  proven guilty. SB 108  strengthens this                                                                    
     maxim  of  presumption  of  innocence  by  treating  as                                                                    
     confidential  court records  associated with  dismissed                                                                    
     and acquitted charges.                                                                                                     
MR. KOPP provided the following sectional analysis:                                                                             
     Section 1                                                                                                                
     Amends AS 22.35 by adding  a new section, AS 22.35.030.                                                                    
     Records   concerning   criminal  cases   resulting   in                                                                    
     acquittal or dismissal confidential.                                                                                       
     This  section  establishes that  a  court  record of  a                                                                    
     criminal case  is confidential if 90  days have elapsed                                                                    
     from the  date of  acquittal or  dismissal and  (1) the                                                                    
     person was acquitted of all  charges filed in the case;                                                                    
     (2)   all  charges   against  the   person  have   been                                                                    
     dismissed; or (3)  the person was acquitted  of some of                                                                    
     the  charges in  the  case, and  the remaining  charges                                                                    
     were dismissed.                                                                                                            
     Section 2                                                                                                                
     Adds a  new section to  AS 22.35 which  establishes the                                                                    
     Applicability of the Act  to criminal charges concluded                                                                    
     on or after the effective  date of the Act by dismissal                                                                    
     or by acquittal of the defendant.                                                                                          
     Section 3                                                                                                                
     Act takes effect July 1, 2014.                                                                                             
1:41:43 PM                                                                                                                    
SENATOR WIELECHOWSKI asked how this would  work in the case of an                                                               
MR.  KOPP replied  the  case information  would  be on  CourtView                                                               
during the entire appeal process.                                                                                               
SENATOR  MCGUIRE summarized  the case  of Nancy  Means. On  Black                                                               
Friday this  18-year-old young  woman was  out shopping  with her                                                               
friends who  were age  17. When Ms.  Means' car  became disabled,                                                               
she pulled  to the side  of the road to  look for help.  A police                                                               
officer stopped  and rather than  giving assistance  he proceeded                                                               
to  ask  a  series  of   questions.  When  the  questions  became                                                               
invasive,  Ms.  Means  asserted  her  constitutional  rights  and                                                               
refused  to answer  any  further questions.  At  that point,  the                                                               
officer  administered   a  walking  test  and   arrested  her  on                                                               
suspicion  of  DUI. When  Ms.  Means  was  tested at  the  police                                                               
station  she blew  a blood-alcohol-content  of  0.00. Since  this                                                               
incident  occurred,  she's  been  fighting  to  get  it  expunged                                                               
because the  record says  she was arrested  on suspicion  of DUI,                                                               
regardless of the facts to the contrary.                                                                                        
SENATOR MCGUIRE asked if the bill  would apply to Ms. Means' case                                                               
because it's not really an acquittal or a dismissal.                                                                            
MR. KOPP  offered his  belief that  the bill  would apply  to Ms.                                                               
Means because dismissals include  those charges when the district                                                               
attorney declines to issue an indictment.                                                                                       
1:45:08 PM                                                                                                                    
SENATOR MCGUIRE said  she'd like that on the  record, because she                                                               
wanted these kinds of cases covered.                                                                                            
MR. KOPP reiterated his belief that  the bill would apply in that                                                               
sort of circumstance.                                                                                                           
CHAIR COGHILL said he'd like  that question answered definitively                                                               
when the bill was brought forward again.                                                                                        
SENATOR DYSON  expressed hope that  if the Department of  Law had                                                               
any concerns with the bill that  they'd agree to meet and discuss                                                               
the matter before the next hearing.                                                                                             
SENATOR WIELECHOWSKI  said he'd heard from  many constituents who                                                               
have had  this problem  and he appreciated  that the  sponsor was                                                               
addressing  it.  He expressed  interest  in  having a  discussion                                                               
about both sides of this issue,  because this was impacting a lot                                                               
of Alaskans in an adverse way.                                                                                                  
1:48:11 PM                                                                                                                    
CHAIR COGHILL  said the  Court System and  the Department  of Law                                                               
would be asked  to speak to the bill in  a subsequent hearing. He                                                               
stated  that  he would  hold  SB  108  in committee  for  further                                                               
        SB 171-MULTIDISCIPLINARY CHILD PROTECTION TEAMS                                                                     
1:49:28 PM                                                                                                                    
CHAIR  COGHILL announced  the consideration  of  SB 171."An  Act                                                               
relating  to   multidisciplinary  child  protection   teams;  and                                                               
relating to  investigation of child  abuse or neglect."  He noted                                                               
that there  was a  work draft committee  substitute (CS)  and Ms.                                                               
Moss would speak to it.                                                                                                         
1:49:50 PM                                                                                                                    
RYNNIEVA MAAS, Staff, Senator John  Coghill, introduced SB 171 on                                                               
behalf  of  the  sponsor.  She spoke  to  the  following  sponsor                                                               
     The  Child  Justice  Act   Task  Force  requested  this                                                                    
     legislation  to clarify  there  are  child abuse  cases                                                                    
     that may not involve  the Office of Children's Services                                                                    
     (OCS)  and  the  law  is  gray  on  whether  or  not  a                                                                    
     multidisciplinary   investigative  team   can  function                                                                    
     under state statute without the involvement of OCS.                                                                        
     An example of such an  investigation would be a case in                                                                    
     which one parent sexually abused  a child and the other                                                                    
     parent  discovers  the  situation, reports  the  sexual                                                                    
     abuse, removes  the child from physical  contact of the                                                                    
     other parent, and the offending parent is arrested.                                                                        
     [Multi-disciplinary  teams]   MDT's  do   conduct  such                                                                    
     investigations    currently   but    there   is    some                                                                    
     disagreement  about whether  or not  this is  occurring                                                                    
     within  the  boundaries  of  the   law.  SB  171  takes                                                                    
     uncertainty away.                                                                                                          
MS. MOSS reviewed the bill sections:                                                                                            
     Section 1.     Current interpretation of this statute                                                                    
     is the  Office of Children's Services  must establish a                                                                    
     MDT,  even though  in many  cases OCS  is not  involved                                                                    
     with  a child  abuse case  that involves  sexual abuse.                                                                    
     This section  expands the ability  to recruit a  MDT to                                                                    
     assist law enforcement  in criminal investigations that                                                                    
     involve an alleged crime against a child.                                                                                  
     Sec. 2.   This section  was modified to clarify  who is                                                                  
     usually  part of  the MDT  team  and lists  who can  be                                                                    
     invited to be  on the MDT permanently or  as needed for                                                                    
     the particular matter in an investigation.                                                                                 
     We have  added a representative  of an Indian  tribe if                                                                    
     applicable; not just someone familiar  with ICWA as was                                                                    
     the  old language  and  have included  in  the list  of                                                                    
     invitees  a representative  from  Division of  Juvenile                                                                    
     Sec. 3.   This  section was  modified to  clarify other                                                                  
     members  of the  MDT can  refer cases  to the  MDT, not                                                                    
     just OCS.  It also  updates the statute to provide that                                                                    
     confidential records  in a CINA case  shall be provided                                                                    
     to members of the MDT.                                                                                                     
     Sec. 4.   Mandates monthly meetings.                                                                                     
     Sec. 5.   Cleanup language  to clarify  the goal  is to                                                                  
     avoid duplicative interviews.                                                                                              
     Sec. 6.   Clarifies  investigations and  interviews can                                                                  
     be conducted by investigative agencies other than OCS.                                                                     
CHAIR COGHILL  highlighted that the legislature  helped establish                                                               
child  advocacy  centers  where  these  multi-disciplinary  teams                                                               
work. The purpose  of the bill is  to ensure that a  child is not                                                               
re-traumatized, and these teams are  the best way to achieve that                                                               
MS.  MOSS  reported  that  these  multi-disciplinary  teams  were                                                               
established by  statute in 1998  in House Bill 375.  Then private                                                               
citizen  John Coghill  waited for  two  days to  testify on  that                                                               
piece of  legislation and "it  put the fire  in his belly  to run                                                               
for office," she said.                                                                                                          
CHAIR  COGHILL  agreed that  was  the  genesis of  his  political                                                               
1:55:17 PM                                                                                                                    
JAN  RUTHERDALE,  Chair,  Children's   Justice  Act  Task  Force,                                                               
pointed  out  that  there  are  two functions  of  the  MDTs:  1)                                                               
investigatory  and  2) review  of  ongoing  OCS cases.  The  bill                                                               
clarifies  that in  those cases  where  OCS is  not involved  the                                                               
protections of the statute still  apply when law enforcement does                                                               
an investigation. In  the second function, OCS may  find it needs                                                               
the assistance of a multi-disciplinary  team after it has filed a                                                               
petition that is working its way  through court so they refer the                                                               
case to  a MDT. In another  circumstance, there may be  people on                                                               
the MDT  that are concerned about  how a case is  progressing and                                                               
they may refer the case to the MDT.                                                                                             
CHAIR COGHILL commented  that MDTs are able to  break through the                                                               
silos in the various departments  that all have authority to deal                                                               
with the child.                                                                                                                 
SENATOR  DYSON  said  he  worked very  hard  to  introduce  child                                                               
advocacy centers  and their  genius is  that they  greatly reduce                                                               
the impact  on a  child. They've resulted  in better  cases going                                                               
1:59:02 PM                                                                                                                    
SENATOR DYSON  moved to adopt work  draft CS for SB  171, labeled                                                               
28-LS1416\U, as the working document.                                                                                           
CHAIR COGHILL  found no  objection and  announced that  Version U                                                               
was adopted.                                                                                                                    
He announced that  he would hold SB 171 in  committee for further                                                               
        SJR 21-CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL                                                                    
2:00:29 PM                                                                                                                    
CHAIR  COGHILL   announced  the  consideration  of   SJR  21.  "A                                                               
resolution proposing amendments to  the Constitution of the State                                                               
of  Alaska to  increase the  number  of members  on the  judicial                                                               
council  and  relating  to  the  initial  terms  of  new  members                                                               
appointed to the  judicial council." This was  the third hearing.                                                               
[CSSJR 21, Version N, was before the committee.]                                                                                
2:01:17 PM                                                                                                                    
SUZANNE  DIPIETRO, Executive  Director, Alaska  Judicial Council,                                                               
explained that  the Judicial Council  is involved in  three areas                                                               
of government in Article 4  of the Alaska Constitution. The first                                                               
is to  screen applicants for  judgeships based  on qualifications                                                               
and forward at  least two names to the  governor for appointment.                                                               
Then the  Judicial Council evaluates  the performance  of sitting                                                               
judges  and  provides  that  information to  voters  for  use  in                                                               
retention  elections. These  functions work  together as  part of                                                               
the  merit  selection  system. The  third  responsibility  is  to                                                               
conduct  studies  to  improve   the  administration  of  justice.                                                               
Examples   of  these   studies  include   the  effectiveness   of                                                               
therapeutic courts, the child  protection case processing system,                                                               
the  number and  effectiveness  of  domestic violence  protective                                                               
orders, criminal  sentencing, recidivism, and outcomes  in felony                                                               
case processing.                                                                                                                
MS. DIPIETRO directed  attention to the packet  she provided that                                                               
includes  information about  the  current members  of the  Alaska                                                               
Judicial Council all of whom  serve staggered six-year terms. The                                                               
current members are Ken Kreitzer  from Juneau, Kathleen Tompkins-                                                               
Miller  from  Fairbanks,  Aimee   Oravec  from  Fairbanks,  Julie                                                               
Willoughby from Juneau, James Torgerson  from Anchorage, and Dave                                                               
Parker from Wasilla.                                                                                                            
She  discussed the  merit selection  and  retention process.  The                                                               
idea, which is enshrined in the  constitution, is that a group of                                                               
six  citizens, chaired  by the  chief justice,  screen applicants                                                               
and  then  send   the  names  to  the  governor   who  makes  the                                                               
appointments. Then the people are  involved through a straight up                                                               
or down popular  vote on the retention of those  judges that were                                                               
selected.  The   founders  thought   that  the   balance  between                                                               
selection and  retention was very  important. The genius  is that                                                               
it provides a role for  the executive, the legislative, the legal                                                               
profession, and the  public directly. She stressed  that this was                                                               
the gold standard in the nation for selecting judges.                                                                           
2:05:17 PM                                                                                                                    
MS. DIPIETRO  discussed the way  that the merit  selection system                                                               
is  implemented.  When the  Judicial  Council  is notified  of  a                                                               
judicial vacancy, it sends out a  press release and notice to all                                                               
members of  the Alaska  Bar Association  inviting them  to apply.                                                               
Applicants  are  given about  a  month  to complete  the  lengthy                                                               
application.  It   must  include   three  professional   and  two                                                               
character  references, contact  information for  every legal  and                                                               
non-legal  employer,  legal  and non-legal  education,  community                                                               
service, Bar Association  service, trials in the  last five years                                                               
with  contact  information  for the  judges  and  attorneys  they                                                               
worked  with  and  against  in  those trials,  and  the  type  of                                                               
practice. The  Judicial Council also  looks for  grievances filed                                                               
with  the   Bar  Association,  civil  and   criminal  charges  or                                                               
lawsuits,  credit   reports,  and   moving  violations.   If  the                                                               
candidate is  already a  judge the Council  looks at  whether any                                                               
discipline has  been filed with the  Judicial Conduct Commission.                                                               
The investigation  is exhaustive and comments  are solicited from                                                               
the public  throughout the process.  Having such a  robust public                                                               
component is unique in the country, she said.                                                                                   
MS.  DIPIETRO explained  that the  Judicial Council  then surveys                                                               
Bar  Association  members,  based on  their  direct  professional                                                               
experience,  about  the  applicants.   The  questions  center  on                                                               
specific areas  known to correlate  to being a good  judge. Those                                                               
are   legal  ability,   temperament,  integrity,   fairness,  and                                                               
suitability  of  experience. The  results  of  these surveys  are                                                               
public, which  is also unique.  She pointed  out the Rule  8.2 of                                                               
the Alaska  Rules of Professional Conduct  explicitly states that                                                               
a lawyer shall  not make a statement about  the qualifications or                                                               
integrity of a judicial candidate  that the lawyer knows is false                                                               
or is reckless. The need to  be honest is stressed throughout the                                                               
process and a violation of  this rule could result in discipline,                                                               
she said.                                                                                                                       
The survey  results are published  and the Judicial  Council then                                                               
sets a  meeting date for  each applicant  in the place  where the                                                               
vacancy  is located.  The reason  for this  is to  hear from  the                                                               
people  in  that  location  about   what  they  think  about  the                                                               
candidate and/or  the qualities  they thing the  Judicial Council                                                               
members  should take  into  account when  selecting  a judge  for                                                               
their community. She highlighted that  this was an important part                                                               
of  the process  and one  that is  not necessarily  replicated in                                                               
other nominating commissions.                                                                                                   
MS.  DIPIETRO said  the Council  members  generally receive  more                                                               
than 100  pages of  information about  each applicant  before the                                                               
meeting.  Reports from  members  indicate  that preparation  time                                                               
often  takes  longer than  the  interview  itself. The  interview                                                               
process takes about  45 minutes and can be open  to the public if                                                               
the  candidate requests  that. After  the interview,  the Council                                                               
undertakes a very  deliberate and thorough process  in which each                                                               
member is called upon to speak  to their impressions and views of                                                               
each candidate.                                                                                                                 
2:12:11 PM                                                                                                                    
SENATOR WIELECHOWSKI asked if Alaska judges must be attorneys.                                                                  
MS. DIPIETRO replied a magistrate judge  is not required to be an                                                               
SENATOR  WIELECHOWSKI asked  if  most superior  court judges  and                                                               
superior court justices are attorneys.                                                                                          
MS.  DIPIETRO replied  all state  supreme court,  superior court,                                                               
and district court judges must be attorneys.                                                                                    
SENATOR  WIELECHOWSKI asked  if there  was a  correlation between                                                               
higher  Bar  Association  scores  and those  who  are  ultimately                                                               
MS.  DIPIETRO affirmed  that applicant  with  a score  of 3.5  or                                                               
higher is statistically more likely to be nominated.                                                                            
SENATOR WIELECHOWSKI asked if there  was an analysis to determine                                                               
whether or  not those who  have higher survey  ratings ultimately                                                               
have higher  performance evaluation  ratings when they  stand for                                                               
MS. DIPIETRO affirmed  that that higher bar  survey scores during                                                               
the selection process correlate to  higher scores in the judicial                                                               
evaluation process.                                                                                                             
SENATOR  WIELECHOWSKI asked  if  there is  a correlation  between                                                               
writing samples and higher retention scores.                                                                                    
MS.  DIPIETRO  affirmed that  having  a  writing sample  that  is                                                               
scored  as  excellent  is more  closely  correlated  with  higher                                                               
retention scores than those who had lower writing scores.                                                                       
CHAIR COGHILL asked what those scores are based on.                                                                             
MS.  DIPIETRO  relayed that  they're  based  on grammar,  syntax,                                                               
clarity of ideas, conciseness, and quality of legal analysis.                                                                   
CHAIR  COGHILL asked  if it  would  be akin  to English  teachers                                                               
grading English papers.                                                                                                         
MS. DIPIETRO answered yes.                                                                                                      
CHAIR COGHILL asked if it's an  elitist process in the sense that                                                               
only certain people will have their writing samples scored.                                                                     
MS. DIPIETRO explained that the  staff member who administers the                                                               
writing sample does the assessment,  but the Council members also                                                               
have copies  of the writing samples  so they're able to  agree or                                                               
disagree with the assessment.                                                                                                   
2:16:41 PM                                                                                                                    
MS.  DIPIETRO directed  attention  to  handout materials  showing                                                               
data on selection  votes: about 81 percent of the  time the votes                                                               
are  either   unanimous  or  nearly  unanimous;   splits  between                                                               
attorney  and  non-attorney members  occurred  only  15 times  in                                                               
1,136  votes,  less than  two  percent  of  the time;  the  chief                                                               
justice  votes just  six  percent  of the  time;  when the  chief                                                               
justice does  vote he/she has  voted yes  to forward the  name in                                                               
question to  the governor  75 percent  of the  time; in  about 73                                                               
percent  of all  judicial selections,  the Council  has forwarded                                                               
more than  two names to the  governor; and many of  the instances                                                               
in which the Council forwards  fewer names occurs in vacancies in                                                               
small rural areas that have just two applicants.                                                                                
MS. DIPIETRO said  that while it's accurate that  there have been                                                               
five chief justice votes in the  last two years, that data out of                                                               
context doesn't  take into consideration  that there have  been a                                                               
lot more votes  in the past few years. She  directed attention to                                                               
a  chart  showing that  the  percentage  of chief  justice  votes                                                               
compared to  total votes  hasn't varied very  much. In  fact, the                                                               
chief justice voting  rate in the past two years  has been around                                                               
four percent,  which is less  than the historical average  of six                                                               
percent, she said.                                                                                                              
MS. DIPIETRO said she wasn't taking  a position on SJR 21 because                                                               
the  Judicial Council  hadn't met  to  talk about  that, but  she                                                               
thought  it was  important  to remember  the  concerns that  were                                                               
voiced  during the  Constitutional Convention  when the  founders                                                               
decided on  the merit selection  system. She cited  the following                                                               
excerpts from the minutes of the Constitutional Convention:                                                                     
     The  theory is  you have  a select  group. The  lawyers                                                                    
     know  who are  good  and  they know  who  are bad.  The                                                                    
     laymen represent in substance the public.                                                                                  
     The whole  theory plan  is that  in substance  a select                                                                    
     professional  group, licensed  by  the  state can  best                                                                    
     determine  the qualifications  of  their brothers.  The                                                                    
     intent of the Missouri plan  was in substance to give a                                                                    
     predominance of  the vote to professional  men who knew                                                                    
     the  foibles, the  defects, and  the qualifications  of                                                                    
     their  brothers.  It  is unquestionably  true  that  in                                                                    
     every trade and  in every profession, the  men who know                                                                    
     their brother  careerists the best are  the men engaged                                                                    
     in the same type of occupation.                                                                                            
MS. DIPIETRO  said the  theory was  to have  an equal  balance of                                                               
public and  lay members. Names  are submitted to the  governor so                                                               
there  is executive  branch participation,  and  then the  public                                                               
participates directly in the retention vote.                                                                                    
2:21:07 PM                                                                                                                    
MS. DIPIETRO concluded her comments  giving information about how                                                               
other  states  address this  issue.  About  38 other  states  use                                                               
judicial nominating  commissions and 18  of those states  have an                                                               
equal number of  attorney and non-attorney members.  A few states                                                               
have  more non-attorney  members as  SJR 21  proposes, but  those                                                               
states  typically  have a  restriction  on  the total  number  of                                                               
members that  can be  a member of  a particular  political party.                                                               
For example, Arizona has 10  non-attorney members on its judicial                                                               
nominating commission, but  only five of them can be  of the same                                                               
political party. There  are five attorney members  and only three                                                               
can  be  of  the  same  political party.  The  states  that  have                                                               
imbalance  try to  impose balance  through other  mechanisms, she                                                               
CHAIR COGHILL stated agreement with the  focus of SJR 21 which is                                                               
to try to find a better regional balance with public members.                                                                   
SENATOR DYSON asked  if anybody had correlated  the two different                                                               
schemes  to  the  crime  rates  and  recidivism  rates  or  cases                                                               
overturned on appeal.                                                                                                           
MS. DIPIETRO said she didn't know.                                                                                              
2:23:19 PM                                                                                                                    
CHAIR COGHILL opened public testimony.                                                                                          
2:23:49 PM                                                                                                                    
FRITZ PETTYJOHN,  representing himself,  said he's been  a member                                                               
of  the Alaska  Bar  Association  for 30  years,  and he's  never                                                               
understood why the  Bar Association is given such  control over a                                                               
branch of  government. He  disputed that Bar  surveys are  a good                                                               
way  to  measure merit  and  cited  examples to  illustrate  that                                                               
personal  opinions  and politics  get  involved.  He offered  his                                                               
opinion that the  judicial system has a bias in  favor of its own                                                               
power  and  it  sets  up   a  conflict  with  other  branches  of                                                               
government. He relayed that he's been  a resident of the state of                                                               
California for  13 years and because  he's still a member  of the                                                               
Alaska  Bar   Association  he  is   able  to  vote   on  judicial                                                               
applicants, but  non-attorney residents  of Alaska can't  vote on                                                               
them. He concluded  his comments stating that  while lawyers have                                                               
a role  to play, the decisions  should be made by  members of the                                                               
SENATOR OLSON asked why he didn't  bring the issue forward in the                                                               
70s and 80s when he was a member of the legislature.                                                                            
MR. PETTYJOHN  replied he  would have  done it  if he  thought he                                                               
could have gotten a two-thirds vote.                                                                                            
2:27:45 PM                                                                                                                    
ALEXANDER  O. BRYNER,  representing  himself, Anchorage,  Alaska,                                                               
said he  had an  extensive history  as an  attorney and  judge in                                                               
Alaska  and he  believes that  Alaska  has a  flagship system  of                                                               
judicial  selection.  It  can  be improved,  but  it's  based  on                                                               
constitutional  principles that  the  founders adopted  carefully                                                               
and with  full knowledge of  what they  were doing, he  said. The                                                               
intent was to  move away from the territorial  system of judicial                                                               
selection that  resulted in  judges who  were beholden  to vested                                                               
interests  that  didn't  reflect  the  interests  in  Alaska.  He                                                               
stressed  that the  system has  worked  well over  time and  that                                                               
nothing is broken that needs a constitutional fix.                                                                              
JUSTICE BRYNER  said he agrees that  there is a need  to increase                                                               
public  participation  in  the  process,   but  that  it  can  be                                                               
structured  within   the  existing  system.  He   concluded  that                                                               
enlarging  the   body  of  public  members   would  be  difficult                                                               
2:38:18 PM                                                                                                                    
ELAINE  ANDREWS, representing  herself,  Anchorage, Alaska,  said                                                               
she is  a retired superior  court judge testifying  in opposition                                                               
to SJR 21.  She relayed that in  the past she has  worked for the                                                               
Judicial Council that screens judges,  served as a judge, and sat                                                               
in judgment on  other judges as a member of  the Judicial Conduct                                                               
Commission. From this unique perspective  she can say that Alaska                                                               
has  the finest  judiciary  in  the country  and  that the  merit                                                               
selection  process works  because it  is not  driven by  partisan                                                               
politics.  She stressed  that  the  system does  not  need to  be                                                               
changed, but conceded that the  manner in which it is implemented                                                               
may  need more  attention from  those who  justifiably speak  for                                                               
more diverse public input.                                                                                                      
JUDGE ANDREWS pointed out that  the founding fathers thought that                                                               
the public  members could  be valuable  in the  merit evaluation,                                                               
but should  not be given  the deciding  vote in a  tie situation.                                                               
The  tie-breaking  vote  was  given  to  the  chief  justice  who                                                               
historically has  cast his/her vote a  comparatively small number                                                               
of times. In  the rare instances that the chief  justice breaks a                                                               
tie, she said it's important  to remember that that chief justice                                                               
was selected by the governor who was elected by the people.                                                                     
She further pointed  out that the governor  is given considerable                                                               
political sway  in the judicial  selection process.  The governor                                                               
selects  the public  members  and  the governor  gets  to make  a                                                               
political   selection  among   the   most   meritorious  of   the                                                               
candidates.  She  said  the public  is  involved  throughout  the                                                               
process through  the public members on  the Council, solicitation                                                               
of  input from  the  public on  the  candidates, public  hearings                                                               
where the public is invited, and  - if the candidates so choose -                                                               
the  public  can  attend  their interview  by  the  Council.  She                                                               
offered  her   belief  that  Alaska   gives  its   citizens  more                                                               
information  on judicial  candidates  and judges  than any  other                                                               
state in the country.                                                                                                           
JUDGE ANDREWS expressed  concern that SJR 21 was  a poorly veiled                                                               
attempt by a  narrow outside money interest to try  to hijack the                                                               
Alaska judiciary  for its  own purposes. She  said that  a recent                                                               
lawsuit  claiming   that  the  Judicial  Council   selection  and                                                               
retention  practices violated  the U.S.  Constitution was  thrown                                                               
out, but  SJR 21 was  essentially that lawsuit  reformulated. She                                                               
suggested  the  committee  look  to   see  who  was  funding  the                                                               
lobbyists  pushing  this  legislation. She  emphasized  that  her                                                               
interest is in having fair and  impartial courts that are made up                                                               
of the  best lawyers  that can  be found  for each  position. The                                                               
Judicial  Council has  always delivered  on the  promise to  give                                                               
only the  names of the highest  caliber to the governor  who then                                                               
can select  on any basis he/she  chooses. She said she's  been in                                                               
Alaska  long enough  to see  administrations dominated  by either                                                               
republicans  or democrats,  but the  courts have  always remained                                                               
outside  the  partisan, political  battles.  SJR  21 attempts  to                                                               
change that  balance and throws  the court into a  political stew                                                               
in violation  of the wisdom  of the constitutional  drafters. She                                                               
urged the  committee members  to follow their  oath of  office to                                                               
uphold and  defend the Alaska  Constitution, because SJR  21 does                                                               
2:47:54 PM                                                                                                                    
MICHAEL PAULEY,  Alaska Family Action  (AFA), explained  that AFA                                                               
was the  legislative advocacy  arm of  the Alaska  Family Council                                                               
(AFC). He said  that AFC supports the goal of  SJR 21 to increase                                                               
public involvement in  the process by which judges  in Alaska are                                                               
selected,  evaluated, and  retained. He  cited other  states that                                                               
vary  widely in  the  number  of persons  who  serve on  judicial                                                               
nominating commissions  to illustrate that the  original proposal                                                               
in  SJR 21  to  have  a 16  member  Judicial  Council was  hardly                                                               
radical or  untried and that  the proposed 10-member  council was                                                               
MR. PAULEY said  that AFC believes that the  most important issue                                                               
that SJR 21 addresses is  the proportional representation between                                                               
those who represent  the Alaska Bar Association  versus those who                                                               
represent the  general public. He  argued that the  system wasn't                                                               
balanced because the attorneys on  the Council represent just one                                                               
half of one  percent of the population of the  state, whereas the                                                               
three  public members  represent the  other 731,000  Alaskans who                                                               
are  served by  the  court  system. He  said  this system  shifts                                                               
enormous power away  from the general public  and concentrates it                                                               
in the hands  of those who make a living  practicing law in front                                                               
of judges.                                                                                                                      
He  opined  that  adding  more public  members  would  provide  a                                                               
valuable check on the ability  of Bar Association members to vote                                                               
as a block to prevent  clearly qualified judicial applicants from                                                               
being nominated  for the  governor's consideration.  He discussed                                                               
the tie  votes in  the last  two years and  pointed out  that tie                                                               
votes  on supreme  court candidates  weren't that  rare. He  said                                                               
that  two of  the five  seats on  the Alaska  Supreme Court  were                                                               
filled  by a  process where  the attorney  members and  the chief                                                               
justice voted as a block to  overrule the unanimous choice of the                                                               
public  members, and  the  public doesn't  know  why because  the                                                               
deliberations occurred behind closed doors.                                                                                     
MR. PAULEY said that one reason  that AFC believes that SJR 21 is                                                               
good public policy is that it  will make those kinds of tie votes                                                               
rare if  not impossible. A  larger commission with an  odd number                                                               
of  regular  voting  members  is  statistically  less  likely  to                                                               
experience tie  votes. He described  the language in  Section 1.2                                                               
as  the  most important  words  in  the Alaska  Constitution  and                                                               
opined  that  SJR  21 was  consistent  with  that  constitutional                                                               
2:54:10 PM                                                                                                                    
TENA   WILLIAMS,   representing   herself,   Ketchikan,   Alaska,                                                               
testified in  opposition to SJR  21. She relayed that  she served                                                               
on the Judicial  Council for six years and found  that the system                                                               
works well. She  said she believes that adding  three more public                                                               
members  would bring  imbalance  and increase  the likelihood  of                                                               
factions   and  divisions   that  could   derail  the   Council's                                                               
effectiveness  with  reverberating  consequences. She  said  that                                                               
despite what  some fear,  her experience  was that  there weren't                                                               
major  divisions   between  attorney  and  public   members.  She                                                               
stressed  that Council  members  vote their  conscience on  every                                                               
applicant  and maintained  that  was never  any  vote trading  or                                                               
effort  to  create alliances  during  her  tenure. She  said  the                                                               
Judicial  Council  was  designed  to keep  politics  out  of  the                                                               
process, and she fears that  weighting the membership in favor of                                                               
governor  appointees  would  introduce  partisan  politics.  This                                                               
would  have a  damaging  effect  on the  quality  of the  state's                                                               
judiciary  because the  best applicants  wouldn't necessarily  be                                                               
nominated, just the best-connected.                                                                                             
MS. WILLIAMS stated  that during her six-year  tenure the Council                                                               
always acted  carefully and deliberately when  it made decisions.                                                               
Each  member  had  an  opportunity   to  ask  questions  of  each                                                               
applicant  and offer  their thoughts  to the  full Council  after                                                               
each interview. Each member had  an equal voice. She worried that                                                               
that might not be the case if  the balance is shifted in favor of                                                               
more executive appointees.                                                                                                      
CHAIR  COGHILL  asked Ms.  Williams  to  submit her  comments  in                                                               
MS.  WILLIAMS concluded  her comments  stating her  opposition to                                                               
changing  the makeup  of the  Judicial Council.  She agreed  with                                                               
both Elaine Andrews  and Alexander Bryner that there  may be room                                                               
for change, but that SJR 21 wasn't the right way to do it.                                                                      
2:59:37 PM                                                                                                                    
CHAIR   COGHILL   held   SJR   21  in   committee   for   further                                                               
3:00:06 PM                                                                                                                    
There being  no further  business to  come before  the committee,                                                               
Chair Coghill adjourned the meeting at 3:00 p.m.                                                                                

Document Name Date/Time Subjects
SB108-DOA-PDA-02-20-14.pdf SJUD 2/24/2014 1:30:00 PM
SB 108
SB108-DOA-OPA-02-21-14.pdf SJUD 2/24/2014 1:30:00 PM
SB 108
SB108-ACS-TRC-01-31-14.pdf SJUD 2/24/2014 1:30:00 PM
SB 108
SB108-LAW-CRIM-02-21-14.pdf SJUD 2/24/2014 1:30:00 PM
SB 108
SB 108 - Rule 37.pdf SJUD 2/24/2014 1:30:00 PM
SB 108
SB 108 - Collateral Consequences in Alaska.pdf SJUD 2/24/2014 1:30:00 PM
SB 108
SB 108 - Section Analysis.pdf SJUD 2/24/2014 1:30:00 PM
SB 108
SB 108 - Sponsor Statement.pdf SJUD 2/24/2014 1:30:00 PM
SB 108
SB171-LAW-CIV-02-21-14.pdf SJUD 2/24/2014 1:30:00 PM
SB 171
SB171-DHSS-CSM-02-21-14.pdf SJUD 2/24/2014 1:30:00 PM
SB 171
SB171-DOA-OPA-02-21-14.pdf SJUD 2/24/2014 1:30:00 PM
SB 171
Version U Marked Up.pdf SJUD 2/24/2014 1:30:00 PM
SB 171
7 AAC 54.020 Protected Info.docx SJUD 2/24/2014 1:30:00 PM
SB 171
Sectional.docx SJUD 2/24/2014 1:30:00 PM
SB 171
MDTs By 2010.pdf SJUD 2/24/2014 1:30:00 PM
SB 171
Sponsor Statement.pdf SJUD 2/24/2014 1:30:00 PM
SB 171