02/10/2021 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Covid-19 Disaster Declarations, Extensions | |
| SB14 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 14 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 10, 2021
1:34 p.m.
MEMBERS PRESENT
Senator Lora Reinbold, Chair
Senator Mike Shower, Vice Chair
Senator Shelley Hughes
Senator Robert Myers
Senator Jesse Kiehl
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
COVID-19 DISASTER DECLARATIONS~ EXTENSIONS
- HEARD
SENATE BILL NO. 14
"An Act relating to the selection and retention of judicial
officers for the court of appeals and the district court and of
magistrates; relating to the duties of the judicial council;
relating to the duties of the Commission on Judicial Conduct;
and relating to retention or rejection of a judicial officer."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 14
SHORT TITLE: SELECTION AND REVIEW OF JUDGES
SPONSOR(s): SENATOR(s) SHOWER
01/22/21 (S) PREFILE RELEASED 1/8/21
01/22/21 (S) READ THE FIRST TIME - REFERRALS
01/22/21 (S) JUD
02/03/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/03/21 (S) Heard & Held
02/03/21 (S) MINUTE(JUD)
02/05/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/05/21 (S) Scheduled but Not Heard
02/10/21 (S) JUD AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
SCOTT STANSBURY, Consultant
Process Safety Management
Anchorage, Alaska
POSITION STATEMENT: Presented a PowerPoint on masks.
NATHAN MACPHERSON, Attorney
The MacPherson Group, LLC
Wasilla, Alaska
POSITION STATEMENT: Testified on COVID-19 mask policy.
ELEANOR ANDREWS, representing self
Anchorage, Alaska.
POSITION STATEMENT: Testified with concerns on SB 14, noting
that the current selection system is not broken.
KAREN BAKER, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 14 because
judges should be selected based on merit and process.
SERENE O'HARA-JOLLEY, representing self
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to SB 14 because it
will politicize the judicial selection process.
ROBIN SMITH, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 14 because it
would interject politics into the judicial selection process.
MICHAEL GARVEY, Advocacy Director
American Civil Liberties Union of Alaska (ACLU)
Anchorage, Alaska
POSITION STATEMENT: Testified with concern that SB 14 would
politicize the selection and retention of judges.
LYNETTE PHAM, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 14 because
selecting judges should be based on merit, not politics.
BOB GROSECLOSE, Attorney
Fairbanks, Alaska
POSITION STATEMENT: Testified with concerns that SB 14 would
tamper with an independent judiciary.
JAY SMITH, representing self
Eagle River, Alaska
POSITION STATEMENT: Testified off topic.
JIM MINNERY, Executive Director
Alaska Family Council
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 14.
ACTION NARRATIVE
1:34:25 PM
CHAIR LORA REINBOLD called the Senate Judiciary Standing
Committee meeting to order at 1:34 p.m. Present at the call to
order were Senators Kiehl, Shower, Myers, Hughes and Chair
Reinbold.
^COVID-19 DISASTER DECLARATIONS, EXTENSIONS
COVID-19 DISASTER DECLARATIONS, EXTENSIONS
1:35:02 PM
CHAIR REINBOLD announced that the committee would hear a
presentation about masks.
1:36:34 PM
SCOTT STANSBURY, Consultant, Process Safety Management,
Anchorage, Alaska, began a PowerPoint on mask policy. He said he
has 35 years of experience in process safety management (PSM)
and in [US Department of Labor, Occupational Safety and Health
Administration] (OSHA) regulations and compliance. He served as
a volunteer for a fire and emergency medical services (EMS)
department in Texas for over 25 years. He has consulted in oil
and gas, chemical, power generation, and the military
specializing in risk analysis, risk mitigation and OSHA
regulations.
MR. STANSBURY discussed OSHA regulations, requirements, and data
on slide 2. He said that the federal government, states, and
municipalities are exempt from OSHA regulations. He said he
would focus on OSHA regulations covering the workplace, outside
of the workplace, and public health. He offered his view that
medical professionals do not have expertise in respiratory
protection. He said that OSHA and NIOSH [the National Institute
for Occupational Safety and Health] are agencies with that
expertise.
1:39:41 PM
MR. STANSBURY reviewed the OSHA and NIOSH respiratory
protection, slide 3. Respiratory protection falls under air-
purifying such as gas masks, or N95 particulate filtering masks
or atmosphere-supplied air, such as air scrubbers. He provided
examples currently being used, noting that self-contained
atmosphere-supplied air sources are 100 percent effective from
inhaling contaminated air.
1:40:46 PM
MR. STANSBURY turned to slide 4. He stated that respiratory
protective devices, such as N95 masks, are considered by the
Food and Drug Administration to be medical devices and must go
through extensive testing. This includes material composition,
filtration properties, and health effects for acute and chronic
illnesses.
MR. STANSBURY turned to slide 5. He said respiratory protection
is used to protect the body from virus contaminates described as
droplets and aerosols. He noted that aerosols could stay
airborne for extended periods depending upon air movement.
MR. STANSBURY turned to slide 6, N95 Respirator. He explained
that the N95 respirators are for single use only and consist of
four layers.
MR. STANSBURY turned to slide 7. Air-purifying respirators are
designed to be effective to a specific micron level. He
explained that a micron is a unit of measurement. The COVID-19
virus is 0.125 microns as compared to a human hair at 70
microns.
1:42:42 PM
MR. STANSBURY discussed respirator limitations on slide 8. He
stated that an N95 mask is designed to be 95 percent effective
at .3 microns. The smaller the particle size, the less chance
the N95 has to stop the contamination from entering the lungs.
The COVID-19 virus is 2.4 times smaller than what the respirator
can stop. Most people wear non-surgical masks and cloth masks,
often of loose weaver materials. He offered his view that a 600-
count bedsheet would have more filtering properties than other
fabrics. However, the space between the threads is 42.3 microns.
This means that the virus is 388 times smaller than what a
bedsheet fabric could stop.
1:43:51 PM
MR. STANSBURY turned to slides 9-10 to provide a visual
perspective of sizes to illustrate how the virus could penetrate
the cloth.
1:44:54 PM
MR. STANSBURY highlighted the problems with typical masks being
used, including the cloth and non-surgical masks on slide 11.
These masks are not NIOSH approved, the material has not been
tested for acute and chronic effects and the masks do not seal
or prevent aerosols from escaping or being inhaled. He quoted
OSHA's website, "Cloth and non-surgical masks will not protect
you against airborne, transmissible, infectious agents."
1:45:51 PM
MR. STANSBURY turned to slides 12-13. He said so many people
catch the virus due to human factors. As the chart demonstrates,
the more frequently a person performs a task, the more likely
they are to make a mistake. People wearing masks constantly
touch their faces to adjust the face covering and remove the
masks to eat or drink but do not sanitize their hands before
doing so. The masks allow droplets of aerosols to penetrate the
fabric that can be inhaled. He provided examples based on his
observations and personal experiences.
1:48:57 PM
MR. STANSBURY discussed slides 15-16 related to controlled
studies. A study conducted in Denmark, consisting of 6,000
people (DaNMASK-19), required half of the participants to wear
masks all of the time to protect themselves from SARS-CoV-2
infections. He reported that the contraction of the virus was
statistically the same in terms of effectiveness. A study in
Hanoi, Vietnam, tested cloth masks compared to medical masks in
healthcare workers using three control groups. He reported that
the penetration of cloth masks versus the control group rates
for virus infection rates was higher for those wearing cloth
masks.
MR. STANSBURY recapped that cloth and non-surgical masks do not
form a tight seal, allowing exposure to droplets and aerosols.
These masks do not have the required filtration properties.
People constantly touch their faces, which increases the
potential for catching COVID-19. He offered his view that masks
exacerbate the transmission of the disease, so he recommends
stopping the emergency orders.
1:50:22 PM
MR. STANSBURY pointed out that slide 17 lists the references
used for his presentation.
1:51:00 PM
SENATOR KIEHL said he was not familiar with the study referenced
that showed that masks cause infections. Still, he is familiar
with the Fauci & Morenstauber study, which was peer-reviewed.
The researchers said that the 1918 influenza pandemic caused
lung irritation and the lack of modern medicine made it more
likely that secondary infections would kill people. That study
did not mention masks as a risk factor in any way. He asked for
a citation for the study mentioned.
1:51:46 PM
MR. STANSBURY answered the reference is on slide 17.
SENATOR KIEHL noted that the slide has multiple references.
1:52:29 PM
SENATOR SHOWER asked if double masking would help. He asked
about a study from Wuhan, China (that was peer-reviewed in the
United Kingdom and China) that discussed zero asymptomatic
transmission.
1:53:17 PM
MR. STANSBURY said cloth will never stop filtration and does not
form tight seals, especially for men with beards. He offered his
view that air gaps are always present with cloth, even if worn
doubled or tripled. He indicated he was not familiar with a
study from Wuhan.
1:54:57 PM
CHAIR REINBOLD informed Mr. Stansbury that everyone in the
legislature tests for COVID-19, but all must wear masks or be
subject to fines. She offered her belief that it violates
inherent civil liberties. She said the federal credit union she
uses does not serve customers unless masked. However, federal
laws also prohibit wearing masks in banks. She provided other
examples of mask requirements.
MR. STANSBURY replied that OSHA determines whether something is
immediately dangerous to life and health in the workplace.
Someone highly qualified must test the air quality and determine
the type of respiratory protection needed. He offered his view
that when employers do not follow OSHA evaluations, it could
result in businesses violating the federal codes and
regulations. These businesses could be held liable for civil
fines and criminal prosecution. He understood a federal law
prohibits wearing masks in banks, but it falls outside his area
of expertise.
1:58:50 PM
CHAIR REINBOLD expressed concern about maladies from wearing
masks, including sties and acne.
MR. STANSBURY acknowledged that complications could occur when
people do not wash their masks or for people with chronic
respiratory diseases who have difficulty breathing. He
characterized masks as useless.
2:01:30 PM
SENATOR KIEHL said infected persons do not expel individual
viruses. Instead, they expel droplets and micron droplets that
range in size from 1 micron to ten or more. He asked whether the
size of a gap is the determinate factor for single-ply masks
when multi-ply masks are recommended. He noted that the
presenter discussed the value to wearers, but he did not speak
to its protection to protect others from the transmission. He
said he has generally read that masks are relatively effective
in protecting the transmission of the expulsion of droplets. He
suggested he address the difference between personal protection
and source control.
MR. STANSBURY argued that the issue is that masks lack a seal so
people can inhale aerosols that can stay airborne for days at a
time.
2:04:26 PM
CHAIR REINBOLD pressed her position that mask requirements
affect individual rights. She said people cannot travel on
airlines unless they wear masks. She asked if he could address
oxygen levels on planes.
MR. STANSBURY related his understanding that pressurized cabins
have less oxygen.
2:06:26 PM
SENATOR SHOWER agreed that cabin air is more difficult to
breathe. He compared it to problems people have traveling to
Denver due to the elevation. He said an average aircraft is held
to 6,000-8,000 foot level pressure when cruising at 30,000 -
25,000 feet.
CHAIR REINBOLD restated her concern about mask mandates since
long-term safety and health effects are unknown.
2:08:40 PM
CHAIR REINBOLD introduced the next speaker, Mr. Macpherson,
noting he is a friend.
2:11:09 PM
NATHAN MACPHERSON, Attorney, The MacPherson Group, LLC, Wasilla,
Alaska, testified on mask policy. He began by quoting Emperor
Julian, "If mere accusation is sufficient for conviction, what
will become of the innocent?" This was Emperor Julian's retort
to the plea of Delphidius, the accuser of Governor Numerius, who
stood trial before the emperor. Emperor Julian's retort in the
4th century echoed the legal maxim that has been law across
various empires for the past 3,500 years until now: the
presumption of innocence.
MR. MACPHERSON said, "All of you have been accused of being
infected with a highly contagious disease, a virus, even a
deadly one. This constitutes defamation, per se, under Alaska
law and the law of, I believe, all 50 states - the accusation of
having a loathsome disease. All of you were forced to prove your
innocence although no defendant in court is required to do so."
2:12:01 PM
MR. MACPHERSON stated that everyone must cover their faces even
though the last testifier opined that cloth masks do not provide
protection. He suggested that legislators are being accused of
harboring COVID-19.
2:13:10 PM
MR. MACPHERSON said that due process is the foundation of common
law and a fundamental right in American law. He said, "The
principle that there is a presumption of innocence in favor of
the accused is the undoubted law, axiomatic and elementary and
its enforcement lies at the foundation of the administration of
our criminal law." He stated that Greenleaf traces this
presumption to the Bible in his "Treatise on the Law of
Evidence." He provided quotations to support the presumption of
innocence, including quotes from Cicero, Roman Emperor Trajan,
Alfred the Great, the Chief Justice of the King's Bench Sir John
Fortescue, and a 1760 US Supreme Court decision. That decision,
often referred to as Blackstone, enshrines the presumption of
innocence into the American common law system.
2:15:48 PM
MR. MACPHERSON interpreted this presumption to mean that the law
must consider people not contagious with COVID-19 until proven
contagious. He referred to AS 18.15.385(d), the quarantine and
isolation statute, which requires that "before quarantining or
isolating an individual, the department shall obtain a written
order from the superior court authorizing the isolation or
quarantine." Even AS 18.15.385(e) that allows some
administrative action in exigent circumstances reads,
"Notwithstanding (d) of this section, when the department has
probable cause to believe that the delay involving seeking a
court order imposing isolation or quarantine would pose a clear
and immediate threat to the public health?" It goes on to allow
for an administrative quarantine but it requires a petition in
the superior court and an emergency hearing within 48 hours to
provide due process by allowing a court of law to make the
determination that a person is a threat to fellow man, he said.
2:17:02 PM
MR. MACPHERSON said that people have the right to refuse
unwanted medical treatment under the due process clause. He
referred to a 1990 US Supreme Court case, Cruzan v. Director,
Missouri Department of Health, which affirmed a person's right
to refuse unwanted medical treatment. He said the informed
consent doctrine has become firmly entrenched in American tort
law. He said another 1990 case, Washington v. Harper found that
the forceable injection of medication into a nonconsenting
person's body represents a substantial interference with that
person's liberty. He opined that this line of US Supreme Court
decisions demonstrates constitutional protection against
unwanted vaccination and intrusive examinations. This may apply
to masks, he said. He questioned why people entering the capitol
building are forced to answer questions in a public place, which
is likely a violation of HIPAA [Health Insurance Portability and
Accountability Act of 1996].
He said that Fourth Amendment rights are implicated. In 1891, in
Union Pacific Railway Company v. Botsford, the US Supreme Court
held that "no right is held more sacred or as more carefully
guarded by the common law than the right of every individual to
the possession and control of his own person, free from all
restraint or interference of others unless by clear and
unquestionable authority of law."
2:19:43 PM
MR. MACPHERSON said that in 2016, the US Supreme Court held in
Birchfield v. North Dakota that warrantless drunk-driving blood
tests are a violation of the Fourth Amendment. He opined that
any statute that would criminalize a refusal to submit to such
blood tests is also in violation. He cited additional cases to
emphasize the Fourth Amendment protections against unreasonable
searches the US Supreme Court provided, which he felt directly
correlated to mandates for masks and vaccines.
2:21:09 PM
MR. MACPHERSON read the Fourth Amendment of the US Constitution:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
MR. MACPHERSON argued that there is no probable cause that
members are contagious since legislators entering the Capitol
are screened for COVID-19. He reminded members that the Alaska
quarantine statute requires probable cause.
2:21:32 PM
MR. MACPHERSON offered his view that the various orders issued
in the Lower 48 and Alaska seem to lack a rational basis and are
not narrowly tailored. He suggested that the highest level of
scrutiny should be used to determine if the government can
impose these burdens on people. He argued that the various
orders cast large nets on the entire populous but the CDC's
[Center for Disease Control's] data indicates only a small group
have contracted the virus. The orders require people to wear
masks, which manufacturers and Mr. Stansbury said do not stop
the virus. He noted that conflicting data exist on mask
effectiveness. He argued that arbitrary decisions are made on
business closures and to determine essential workers. He said,
"and consider the fact that when the government says you're not
essential, are we surprised that suicides are on the rise.
'You're not essential - might as well just kill yourself.'"
CHAIR REINBOLD noted a point of order by Senator Kiehl.
2:24:32 PM
SENATOR KIEHL asked Chair Reinbold to maintain decorum so that
no one accuses anyone of actively encouraging suicide when that
did not happen.
CHAIR REINBOLD acknowledged the point of order.
2:24:55 PM
MR. MACPHERSON said several state courts have overturned some
shutdowns. He highlighted the effects of COVID-19 mandates on
people and families, citing some personal experiences. He
lamented that other causes of death, including abortion and
heart disease do not get proper attention.
2:26:55 PM
MR. MACPHERSON argued that people's First Amendment rights are
infringed upon. He stated that freedom of speech is restricted
by mandating masks because people communicate nonverbally and
masks restrict facial gestures and alter voices. Individual
rights for freedom of association are interrupted because
mandates restrict people from congregating in groups. He argued
that the mandates violate freedom of religion because the
restrictions require masks and encourage people not to
congregate in groups, including church services. He highlighted
that requiring masks infringes on religious practices. He noted
he sent Chair Reinbold links regarding these implications.
2:29:16 PM
MR. MACPHERSON discussed current and historic religious
practices for many faiths that have been affected by the
restrictions due to COVID-19. He argued that the mandates have
led to people of faith meeting covertly, noting that several
pastors were arrested for holding church services. He provided
personal and historic examples to illustrate his point that
people's religious beliefs have been violated.
2:32:30 PM
MR. MACPHERSON recapped his arguments against the COVID-19
mandates. He said that the presumption of innocence provides the
foundation of the common law system in the United States. He
said that all of these mandates and COVID-19 orders are based on
a presumption of guilt, that a person is contagious until proven
not contagious. He argued that even those proven not contagious
are still required to wear a mask and socially distance. These
requirements lack a reasonable basis and are not narrowly
tailored to serve the legitimate police power of the state, he
said. He offered his view that the many US Supreme Court cases
demonstrate that fundamental constitutional rights are
implicated. He cautioned that the entire substance of the
republic was threatened by the abandonment of common law
principles and the adoption of mandated practices. Science is
being used to determine policy for the first time, people are
considered guilty until innocent, and people are conditioned to
abandon the common law principles of the United State's
republican form of government. He maintained his concern that
government has infringed on people's fundamental rights to life,
liberty and pursuit of happiness and he reiterated examples.
2:36:04 PM
SENATOR KIEHL said it was a fascinating presentation. He offered
his view that it took some civil and criminal law and put it in
a blender. It is difficult to tease out the principles that
underlay the arguments because the arguments shifted. He stated
that rather than take exception to the notion that drinking
water standards or vehicle design rules are not based on science
and that this is the first time science has ever dictated public
policy, he would summarize the underlying premise. He said it
seems that the underlying premise of the presentation suggests
that government may not act to protect citizens from themselves
or external harms in an emergency situation. He pointed out that
government does that routinely in non-emergency situations, such
as erecting a fence around a military institution or driver
licensing that tests knowledge and requires a road test. He
asked when and how the government could apply general standards
for safety in a civil context.
MR. MACPHERSON said he believes Senator Kiehl misconstrued what
he meant. He elaborated that strict scrutiny should be used
where fundamental constitutional rights are affected. The
measures undertaken in the past year were not narrowly tailored.
Several courts that struck down the lockdown laws and church
closures held exactly this. He echoed what the Pennsylvania
court held regarding lockdowns or what other courts held that
opened up churches in various locations.
2:38:29 PM
SENATOR SHOWER remarked that communist China is restricting
Christians. He asked him to address whether airlines, hotels,
grocery stores or other businesses restrict people.
MR. MACPHERSON provided a broad principle that just because the
business is open to the public does not mean it can do whatever
it wants to do. He said public accommodation laws apply certain
constitutional principles to businesses that hold themselves out
to the public. He provided several examples.
2:39:48 PM
SENATOR HUGHES asked if strict scrutiny was applied in the 1918
Spanish Flu Pandemic.
MR. MACPHERSON replied that he was not aware of any cases that
arose due to the Spanish Flu Pandemic. He recalled masks and
anti-masks were an issue, but he was unsure if it was tested in
the courts.
2:40:38 PM
CHAIR REINBOLD brought up an issue she had with Alaska Airlines.
She asked the record to reflect that her conversation with
airline personnel was civil and no harsh words were spoken. The
airline required her to wear two masks because her chin was not
adequately covered. She acknowledged that she does not believe
masks should be required. She asked him to comment on airlines
requiring passengers to wear two masks in a pressurized
compartment even if the person did not have a health care
exemption. She said the governor's mandates required masks in
state buildings. The mandates also required face coverings at
churches when speaking to a clergy member. The health alert also
indicated the distance between parked cars for Easter Services.
She thanked him for his work on religious freedom.
2:42:39 PM
MR. MACPHERSON replied that the law has developed in the past
hundred years. He cited Roe v. Wade, which broadened all aspects
of case law regarding privacy. Private companies can dictate
medical policy. The airlines have refused to accept personal
physician's recommendations for their patients while traveling.
He recalled that Delta Airlines has even subjected people to the
airline's doctors, which appears to be a HIPAA [Health Insurance
Portability and Accountability Act of 1996] violation. He
referenced issues for several other court or administrative
cases in which constitutional rights were an issue, including a
soldier who was allowed to have a beard because of his religious
beliefs. The US Army has restrictions on facial hair for the
collective safety of soldiers. The same principles could be used
when stopping a virus.
CHAIR REINBOLD understood him to imply that the airlines are
practicing medicine without a license by overruling doctor's
orders or recommendations.
MR. MACPHERSON stated he provided his doctor's note to Delta
Airlines, but the airlines said their doctor advised something
else.
CHAIR REINBOLD asked for his permission to submit the letter
regarding practicing [medicine without a license] to the
committee. She informed members that Alaska Airlines indicated
there were no exemptions [to their mask policy].
SB 14-SELECTION AND REVIEW OF JUDGES
2:49:17 PM
CHAIR REINBOLD announced consideration of SENATE BILL NO. 14,
"An Act relating to the selection and retention of judicial
officers for the court of appeals and the district court and of
magistrates; relating to the duties of the judicial council;
relating to the duties of the Commission on Judicial Conduct;
and relating to retention or rejection of a judicial officer."
2:49:12 PM
CHAIR REINBOLD opened public testimony on SB 14.
2:49:36 PM
ELEANOR ANDREWS, representing self, Anchorage, Alaska, said she
previously served for seven years on the Alaska Judicial
Council. She offered her view that the judicial selection
process is not broken. She emphasized that judges are not being
charged with illegal activities, challenged for lack of legal
rigor, or accused of crimes. She offered to provide written
comments.
2:50:41 PM
to SB 14, because it would politicize judicial appointments in
Alaska. She emphasized the importance of selecting the most
qualified candidates as determined by the Alaska Judicial
Council rather than to allow the governor to appoint any lawyer
who has practiced in Alaska for a few years. She questioned
Governor Dunleavy's past attorney general choices and said the
governor is not always a good judge of character or fitness for
judicial appointments. Alaska's Constitution created a good
merit-based system for selecting and retaining judges. This is
why a separate mechanism ensures that judicial appointments are
made based on merit rather than politics.
2:52:20 PM
SERENE O'HARA-JOLLEY, representing self, Fairbanks, Alaska,
spoke in opposition to SB 14. She said Alaska's judicial and
retention system is not broken. She stated that a nonpartisan
peer recommendation process provides an important separation of
powers. She mentioned Senator Meyers' campaign promise not to
get caught up in the power aspects of government. He also talked
about the problems associated with expanding government. She
opined that SB 14 is about expanding government into a process
that is working and infringes on the separation of powers.
Allowing the legislative branch to select judges would expand
the government's reach and allow ideology into the selection
process.
2:54:11 PM
CHAIR REINBOLD cautioned testifiers to refrain from attacking
individual legislators.
2:54:22 PM
ROBIN SMITH, representing self, Anchorage, Alaska, spoke in
opposition to SB 14 because it would interject politics into the
process of selecting judges. The framers of Alaska's
Constitution benefitted from reviewing other states'
constitutions. The Alaska Constitution creates a process to
select and retain impartial, high-quality judges to remove a
judge through a vote. According to the Brennan Center for
Justice, the judicial selection process has become increasingly
politicized. The judicial branch provides an important check on
the other two branches of government. SB 14 would politicize the
process.
2:56:37 PM
MICHAEL GARVEY, Advocacy Director, American Civil Liberties
Union of Alaska (ACLU), Anchorage, Alaska, stated that the ACLU
protects the civil rights and individual liberties enshrined in
the US Constitution and the Alaska Constitution. The Alaska
Constitution created a judicial system based on merit and
independence. He said the Alaska Judicial Council is central to
carrying out these values.
MR.GARVEY expressed concern that SB 14 would increase the
influence of politics on Alaska's courts and undermine the
state's long-revered merit selection system. The bill would
allow the governor to appoint judges who the Alaska Judicial
Council does not nominate as the most qualified, require
legislative confirmation of these appointees, force Alaska
Judicial Council nominees to pass an ideological litmus test and
put the Commission on Judicial Conduct in charge of providing
recommendations for retention elections rather than the Alaska
Judicial Council, which already considers the commission's work.
It is clear that SB 14 would increase the influence of politics
on the courts were it to pass so that judicial openings would be
based on the confirmation process rather than who is most
qualified.
MR. GARVEY said the practical effect of SB 14 would be to weaken
the performance of the state's judiciary while opening the
system to the influence of the governor's office and the
legislature.
2:58:55 PM
LYNETTE PHAM, representing self, Anchorage, Alaska, spoke in
opposition to SB 14. This bill would give the governor more
power, she said. She stated that judges should be selected based
on their legal qualifications, fairness, and experience. She
urged members to vote no on SB 14.
2:59:54 PM
BOB GROSECLOSE, Attorney, Fairbanks, Alaska, stated that he
served on the Alaska Judicial Council (AJC) for a six-year term
ending in 2006. He has also served a three-year term on the
Commission on Judicial Conduct. He said this bill would
politicize the judicial selection and retention system that has
worked well. The framers of the Alaska Constitution developed a
system to ensure an independent judiciary. The AJC screens
applicants. He urged members to reject SB 14 because it does not
further the design of the constitution and it would impede the
state's ability to maintain and preserve an independent
judiciary.
3:01:29 PM
JAY SMITH, self, Eagle River, Alaska, testified on the
coronavirus but gave no testimony on SB 14.
3:03:34 PM
JIM MINNERY, Executive Director, Alaska Family Council,
Anchorage, Alaska, urged members to support SB 14. He stated
that the council believes that involving the executive and
legislative branches in judicial selection would help promote a
more accountable judiciary and enhance public confidence in
Alaska's court system. The existing judicial selection process
places too much authority in the Alaska Judicial Council, which
is dominated by members of the Alaska Bar Association (ABA). The
ABA is a professional guild with 2,300 active members
representing less than one percent of the state's population,
yet four of the seven council seats are held by its members. He
said the consultants to the convention committee on the
judiciary warned about this. He read an excerpt from Vic
Fisher's book, Alaska's Constitutional Convention, as follows:
These sections in particular, however, go a long way
toward withdrawing the judicial branch from the
control of the people of this state and placing it
under that of the organized bar. No state constitution
has ever gone this far in placing one of the three
coordinate branches of the government beyond the reach
of democratic controls. We feel that in its desire to
preserve the integrity of the courts, the convention
has gone farther than is necessary or safe in putting
them in the hands of a private, professional group,
however public spirited its members may be.
MR. MINNERY said that SB 14 does not cure every shortcoming in
the current judicial selection process but it is a significant
step in the right direction.
3:06:36 PM
CHAIR REINBOLD stated that public testimony would remain open.
[SB 14 was held in committee.]
3:06:40 PM
There being no further business to come before the committee,
Chair Reinbold adjourned the Senate Judiciary Standing Committee
meeting at 3:06 p.m.
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