Legislature(2001 - 2002)
05/05/2001 01:10 PM Senate STA
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS COMMITTEE
May 5, 2001
1:10 p.m.
MEMBERS PRESENT
Senator Gene Therriault, Chair
Senator Randy Phillips, Vice Chair
Senator Rick Halford
Senator Bettye Davis
MEMBERS ABSENT
Senator Drue Pearce
COMMITTEE CALENDAR
SENATE BILL NO. 55
"An Act changing the name of the Alaska Pioneers' Home to the
Alaska Pioneers' and Veterans' Home and of the Alaska Pioneers'
Homes Advisory Board to the Alaska Pioneers' and Veterans' Home
Advisory Board; relating to services for veterans in the home;
relating to the advisory board for the home; making other
amendments to the statutes relating to the home; making conforming
amendments to other statutes; and providing for an effective date."
HEARD AND HELD
HOUSE BILL NO. 167
"An Act relating to license plates for Alaska National Guard
personnel and for antique motor vehicles; relating to gold rush
license plates; and providing for an effective date."
MOVED HB 167 OUT OF COMMITTEE
SENATE BILL NO. 87
"An Act providing special absentee ballots for voters in remote
areas."
HEARD AND HELD
SENATE BILL NO. 159
"An Act relating to retention elections for judges of the court of
appeals."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
SB 55 - See State Affairs minutes dated 2/8/01.
HB 167 - No previous action recorded.
SB 87 - No previous action recorded.
SB 159 - No previous action recorded.
WITNESS REGISTER
Jim Duncan
Commissioner
Department of Administration
PO Box 110200
Juneau, AK 99811-0200
POSITION STATEMENT: Testified on SB 55
Ed Barber
Pioneers of Alaska
No address provided
POSITION STATEMENT: Testified on SB 55
Gene Dau
Juneau, AK
POSITION STATEMENT: Testified on SB 55
Representative Dyson
Alaska State Capitol, Room 104
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 167
Senator Lincoln
Alaska State Capitol, Room 11
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 87
Sara Boario
Staff to Senator Lincoln
Alaska State Capitol, Room 11
Juneau, AK 99801-1182
POSITION STATEMENT: Testified on SB 87
Gail Fenumiai
Election Program Specialist
Division of Elections
P.O. Box 110017
Juneau, AK 99811-0017
POSITION STATEMENT: Answered questions on SB 87
Senator Donley
Alaska State Capitol, Room 506
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 159
Chris Christensen
Deputy Administrative Director
Alaska Court System
820 W. 4th Ave
Anchorage, AK 99501-2005
POSITION STATEMENT: Testified in opposition to SB 159
Bill Cotton
No address provided
POSITION STATEMENT: Testified on SB 159
ACTION NARRATIVE
TAPE 01-27, SIDE A
Number 001
CHAIRMAN GENE THERRIAULT called the Senate State Affairs Committee
meeting to order at 1:10 p.m. Present were Senators Davis,
Phillips, Halford and Chairman Therriault.
The first order of business was SB 55.
SB 55-PIONEERS' AND VETERANS' HOME/ADVISORY BD
CHAIRMAN THERRIAULT said it was not his intent to move SB 55 but he
would like to hear more information. Some pioneers who oppose the
bill in its current form but think there is the possibility of
working things out have contacted him. Earlier, when he asked for
information on the regulation package it was still in outline form
but he thought it might help allay some of the fears. Also, at the
House State Affairs Committee meeting the contents of the letter to
Mr. Leo Kaye from Tony Principi were read into the record and he
wondered whether Commissioner Duncan had reviewed the letter or
been in touch with the Veterans Administration (VA) and was able to
explain some of the terminology in the letter. Specifically, the
line that says, "The VA State Home per diem grant program provides
federal payments to states for eligible veterans" is unclear as to
whether the funding flows to the individual veteran or to the
state. Next, the line stating, "We look forward to working closely
with the state to help Alaska meet all federal grant requirements"
left unanswered what those grant requirements are. Finally the
mention of taking over one of the pioneer homes or a wing of a home
is quite possibly causing some concern among Pioneers.
JIM DUNCAN, Commissioner of Administration, passed out copies of a
letter he sent to the chairman of the Pioneers of Alaska
legislative committee in March 2001 and a letter about regulations
he sent to Chairman Therriault in February.
The Pioneers do have specific concerns about the legislation and he
now recommends three amendments to address those concerns.
· First, they didn't want the state pioneer home system to
fall under federal control and regulation. That has never
been the intention and to make this clear he recommends
that legislative committees add an intent section that
clearly states that it is the intention of the
legislature that this remain a state owned and operated
system located within the Department of Administration
and it is not to fall under federal rules, regulations
and requirements.
· The second recommendation is to delete the language that
refers to cooperation with the federal government from
the pioneer home statutes.
· The third recommendation stems from the concern about
putting veteran's preference in regulation and the fear
that it might result in a veterans' home and not a
pioneer/veteran home. The regulation outlined seems clear
and says the 21 percent preference will be of the fully
funded beds so if all 600 beds were funded it would be 21
percent of 600 and if there are just 500 funded beds it
would be 21 percent of 500. Preference would never be
given to more than 21 percent of the funded beds. Because
of the concerns, he recommends putting the regulation in
statute, which would resolve the concern because then it
would require legislative action to change it.
The bill drafters have been asked to look at the language again
even though they believe the current language that provides for the
21 percent preference and spousal preference is language they would
recommend putting into statute.
The name change to pioneer/veteran home is important because to
fulfill the commitment to veterans they need to be recognized in
name. The name change is also necessary from the Veterans
Administration's viewpoint.
CHAIRMAN THERRIAULT asked what is entailed in the language, "meet
all federal grant requirements."
COMMISSIONER DUNCAN responded that was in the letter to Mr. Kaye
from Department of Veterans Affairs' (VA) Secretary Principi. He
interprets that as present VA policy such as the requirements that
homes must meet so that the residents of those homes qualify for
the federal VA benefits. In the discussion with Mr. Principi they
talked about developing a model pioneer/veterans home system and
obtaining a federal waiver of the typical requirements so veterans
in the combined home could receive VA benefits. Currently there are
90 veterans in the pioneer homes in Alaska and none of them receive
per diem veteran's benefits. These benefits would flow directly to
the veteran who would use the money to help pay for their cost of
care.
Secretary Principi was clearly interested in working on this model
combined system because, if successful, it could be used throughout
the country.
CHAIRMAN THERRIAULT asked whether, as a first step, the VA would
make the change in their policy to allow veteran benefit payments
to those 90 veterans currently in the pioneer homes.
COMMISSIONER DUNCAN said that would be a big step for the VA to
make without the state taking some action to indicate a commitment
to veterans. It has to be a hand-in-hand joint effort. Lacking the
preference or name change it will be difficult for them to take a
first step.
CHAIRMAN THERRIAULT asked if a name change would be sufficient to
get the VA to change their policy so the veterans in the pioneer
system could get the VA benefits.
COMMISSIONER DUNCAN could not give a definitive answer.
CHAIRMAN THERRIAULT commented that for some seniors, the name
change is the most egregious part.
SENATOR PHILLIPS asked why there is such resistance from the World
War II generation.
COMMISSIONER DUNCAN said there is no one specific reason. First,
the pioneer home system has been in existence since 1913 and there
is ownership that has built up and change is frequently difficult.
Second, there has been some misinformation that this would mean
that pioneers who have been on the list for years would be stepped
over by veterans and they would not get into the home when desired.
Also, there is concern that pioneer women would not be treated
fairly. Last, there is concern that the homes would be under
federal control and regulation.
SENATOR PHILLIPS said veterans complained to him.
COMMISSIONER DUNCAN agreed there are some veterans with
reservations but there are a number of veterans' organizations that
have expressed support.
SENATOR PHILLIPS commented that the average age in the pioneer home
is 85 and most of them probably served in some capacity in World
War II so there must be a difference of opinion among that
generation.
COMMISSIONER DUNCAN said he thought the average age of occupancy is
87 and the waiting list is 83. He too is mystified at the
resistance.
CHAIRMAN THERRIAULT announced that because of the shifting
schedules, a number of individuals were not able to wait to
teleconference but they faxed their testimony. Most identified
themselves as pioneers who opposed the change.
He said he would like to continue to work through the interim with
Commissioner Duncan, his department and the VA to work toward an
acceptable piece of legislation. Getting a number of issues
clarified with the VA would help with the discussion.
SENATOR DAVIS thought there should definitely be some work done
with the VA. She has received letters and messages from veterans
who are not in favor of the change. They have indicated they want
something dedicated to them alone - not as a joint facility. If
they could be assured they would be adequately cared for, the
opposition might go away.
SENATOR PHILLIPS pointed out that Senator Davis' district abuts his
and the complaints he received came from the area closest to her
district so there are obviously concerns.
COMMISSIONER DUNCAN was anxious to work on the various concerns to
the legislation during the interim. They will continue to work with
the VA as well.
SENATOR DAVIS asked whether the two amendments Commissioner Duncan
recommended were in printed form.
CHAIRMAN THERRIAULT said they were not formalized.
COMMISSIONER DUNCAN responded the first two are in a letter to Bob
Hufman and the third recommendation is to incorporate the
regulations into statute.
CHAIRMAN THERRIAULT added the current statutory language with
regard to working with the federal government would be deleted.
SENATOR PHILLIPS asked for more information for the committee and
the public on the 65 percent funding reference.
COMMISSIONER DUNCAN responded if a stand alone home is built, the
federal government would provide 65 percent of the construction
costs while the state would provide 35 percent.
SENATOR PHILLIPS thought that needs to be talked about and fleshed
out during the interim.
CHAIRMAN THERRIAULT called for teleconference testimony.
ED BARBER is with the Pioneers of Alaska and lives in Anchorage. He
encouraged the committee to include all parties when they work on
this legislation in the interim. It's important to include the VA
so they can make their position known to everyone. There are many
questions that need to be answered. At least nine others wanted to
testify but were not able to wait for the committee to meet.
He stressed the importance of advertising any meetings and adhering
to whatever time schedule is set.
CHAIRMAN THERRIAULT thanked Mr. Barber for his comments and assured
him that his staff would be contacting the individuals to assure
them their faxed testimony is in the bill packet and to apologize
for the disrupted schedule.
GENE DAU testified as a disabled veteran in support of SB 55. He
asked Senator Stevens to give the bill a plug when he addressed the
joint body and he did so. This is a win-win situation according to
Senator Stevens and, as chairman of the appropriations committee,
he is in a position to help. He urged action.
CHAIRMAN THERRIAULT announced SB 55 would be held in committee to
be worked on in the interim.
HB 167-MOTOR VEH.LIC.PLATES: NATL GUARD/ANTIQUE
REPRESENTATIVE DYSON said a number of antique car enthusiasts came
to him and asked him to help make it legal for them to put a year
of manufacture plate on their car. The Division of Motor Vehicles
has no objections to the change. It is subject to two requirements.
First, the plate must be legible and second, it must not duplicate
an existing plate.
At the same time, there was a request to change the law so that
those individuals with national guard plates wouldn't have to turn
them in within 10 days following discharge from that service.
CHAIRMAN THERRIAULT asked whether the person who served in the
national guard had the right to keep that plate forever or until
the plate needed to be renewed.
REPRESENTATIVE DYSON responded they could keep the plate forever.
CHAIRMAN THERRIAULT called for questions. There were none.
There was no prepared CS and no amendments from committee members.
There was a zero fiscal note.
He called for the pleasure of the committee.
SENATOR PHILLIPS moved HB 167 and zero fiscal note from committee.
There was no objection.
SB 87-SPECIAL ABSENTEE BALLOTS
CHAIRMAN THERRIAULT commented he had assured Senator Lincoln they
would get to a brief discussion of her bill.
SENATOR LINCOLN said her aide, Sara Boario, would explain the bill.
SARA BOARIO, staff to Senator Lincoln, explained SB 87 would extend
the 60 day special absentee ballot to voters living in remote
areas. Now only voters living, working or traveling outside the
United States are eligible.
This legislation is a result of requests by the Coy and Bower
families. They outlined the difficulties they faced in the last
election. There are many people who live in Bush Alaska and outside
of organized communities. Mail service is irregular and sometimes
non-existent and the limited time frame of the regular absentee
ballot makes it difficult to exercise their right to vote. The
regular absentee ballots are sent out three weeks before an
election and this in not enough time, particularly during the
winter.
As Representative Coghill said when he introduced HB 109, voting is
the fundamental method citizens use to participate in our
democracy. Therefore, improving the process for even a small number
of individuals is imperative.
There is no fiscal impact associated with the bill.
SENATOR LINCOLN noted there were a number of teleconference
testifiers who were available that morning but could not wait until
the committee met in the afternoon.
SENATOR PHILLIPS asked for the definition of remote site.
GAIL FENUMIAI, Election Program Specialist with the Division of
Elections, responded remote sites are those without reasonable
access to polling stations.
CHAIRMAN THERRIAULT asked how many individuals would be affected if
they gave voting some planning and thought. The 60 day special
absentee ballot is available to those who are out of the country
and there you're relying on another countries mail system. Although
he is well aware of the importance of allowing individuals the
opportunity to vote, people must take some responsibility to
exercise that duty. He asked whether the division of elections is
aware of a number of people who are precluded from voting due to
the time constraints.
MS. FENUMIAI said these voters do take the necessary steps to apply
for a regular by mail ballot but some of the remote areas do not
have mail service. They must charter a plane to get their mail
brought to them so in the wintertime the three week time frame
passes quickly.
She did not have a quantifiable number of voters that are affected
but they have received a number of comments from angry voters who
did not get their ballots back in time for them to be counted.
MS. BOARIO added that Shelly Growden, election supervisor for
region three, reported over 1,000 voters living in remote areas in
the interior and Prince William Sound area that are classified as
permanent absentee voting areas. Many of those voters live outside
organized communities and have no mail service.
CHAIRMAN THERRIAULT asked for confirmation that the definition of
remote is in statute.
MS. FENUMIAI thought it was in statute but did not recall seeing it
in Title 15 but the term "reasonable access remote area" is used in
other locations in statute.
CHAIRMAN THERRIAULT was concerned that it not become the division's
responsibility to ensure each individual gets a ballot.
MS. FENUMIAI agreed and said the division would have to decide on a
procedure for identifying these people.
CHAIRMAN THERRIAULT asked how the special 60 day absentee ballot
works.
MS. FENUMIAI replied that for the primary the voter gets a blank
ballot with a list of offices that are up for election in the
district in which they reside and a list of candidates who have
filed for office. The voter may then write in the name of a
candidate. They are also sent the official ballot and if that one
is voted, returned and received in time it is counted. If not, the
special event ballot is counted instead. For the general election,
the voter gets the same type of ballot but they have the option of
either writing in the name of the candidate or writing in the party
of their choice for each office. This is because the election
results are not certified for the primary at that time and that
voter's candidate of choice may not have advanced to the general
election ballot.
CHAIRMAN THERRIAULT said he wants to know more about the definition
of remote and how that would work. He also asked whether voting by
fax was an in state option or available to just out of state
voters.
MS. FENUMIAI assured him fax voting is available to voters both in
and out of state.
Side B
CHAIRMAN THERRIAULT assured Senator Lincoln the discussion would
continue and that he needed more information on how remote would be
defined and the controls the division would institute.
SENATOR LINCOLN said huge numbers of voters would not be affected
but people that do make every effort to vote should be
accommodated.
CHAIRMAN THERRIAULT held the bill in committee.
SB 159-APPEALS COURT JUDGES RETENTION
SENATOR DONLEY described the bill as a Senate Judiciary Committee
bill that would shorten the terms of office of the court of appeals
from eight to four years. Pursuant to research that was performed
after the bill was drafted, he suggested a committee substitute to
change the four-year term to six years.
There are various systems for selection and retaining judges across
the United States. The committee's research shows there are only
eight pure merit states of which Alaska is one. Of those states,
the average length of office is about 7.2 years for appellate
courts so Alaska is above the average for the merit states.
Many other states, even those using a mix of the merit system, have
terms that are less than Alaska's. In fact, the only states with
longer terms than Alaska's are those that use the merit system and
have the Senate confirm the appointments. Given that eight years is
above the national average and that most other states elect the
judges directly, it appears that Alaska has less judicial oversight
and longer terms than most states that use the merit system.
He feels it would be better public policy to have a six year term
rather than the four years the bill calls for. This is more in line
with the national average, particularly since there is no direct
election of judges, just the retention election option.
Number 2109
CHRIS CHRISTENSEN, Deputy Administrative Director of the Alaska
Court System, testified SB 159 would negatively impact the criminal
justice system in Alaska and thus they oppose the legislation.
Judges are selected on a rigorous merit based system in Alaska. The
minutes of the Constitutional Convention reflect the long and
careful time spent to put together a system for selecting and
retaining judges. They wanted a system that provided for both
independence and accountability and selected the Missouri plan as
their guide. Judges are selected using the merit system and
partisan politics are kept out of the selection and appointment
process as much as possible. They then stand for retention on a
regularly scheduled basis.
This has worked well and there is no history of official corruption
in the Alaskan judiciary, unlike many states. If Alaskan attorneys
are polled, they will say the quality of the bench today is better
than it has ever been. There are many hard working and well
respected attorneys who are committed to what they do.
He said he is perplexed to see legislation that affects the court
of appeals because it does not deal with controversial cases. It
hears criminal appeals in a generally non-controversial manner and
it applies the most liberal bill of rights in the country to the
laws the legislature passes.
Judicial independence is the ability to judge a case and to
interpret and apply the law as free as possible from external
influences and pressures. That is what the court of appeal does now
and SB 159 would effectively reduce the ability to judge a case
free of external pressure simply because judges would have to face
the voters at much shorter intervals. Shorter intervals make it
more likely that political campaigns would be waged against judges
because of single unpopular decisions. Longer terms would give
voters a longer term perspective on a judge's job performance.
Although it is stated that this legislation is to bring the
retention periods for Alaska's judges more in line with other
states he respectfully disagrees with the conclusions drawn by
Senator Donley because his data is out of date. Currently there are
39 states with an intermediate court of appeals and 18 of those use
some variation of the merit selection and retention system. Of
those 18, 10 have terms of 8 or more years, 8 have terms of less
than 8 years. Therefore, Alaska's 8 year term is right in the
middle. There are 21 states without a merit system for their court
of appeals and 10 of those have terms of 8 years or longer and 11
have terms of less than 8 years. Again, Alaska is in the middle. If
you add the totals for the 39 states you will see that 20 have
terms of 8 years or longer and 19 have terms of less than 8 years.
Alaska's terms are not longer than others they are right in the
middle.
Next, he used averages as Senator Donley did in his memo. This
proved problematic since there are 2 states that appoint judges
until age 70. If you were to look at the current court of appeals
and apply the age 70 standard, one would have a term of greater
than 20 years and two would have terms of more than 25 years. He
called those two "age 70" states 15 year terms because most of
Alaska's judges serve 15 years. Of the merit selection states the
average is 7.9 years and of the non-merit states the average is 7.8
years. This shows that Alaska is at the average.
It is argued that judges of the court of appeals in Alaska have
less accountability than in most other states but they don't have
less accountability than the four states with courts of appeal that
use appointments without any retention process. In fact, he doesn't
believe they have less accountability than judges in most of the 16
other states that use the merit selection system. They probably do
have less accountability than in the 17 states that conduct
elections but, according to the framers of the constitution, that
is good. Many of the framers came from states with contested
judicial elections and were well aware of the pitfalls in that type
of accountability.
Judges who are challenged in retention elections do have the
ability to raise money and oppose the election but it's not a good
idea to have a system where criminal court judges must raise money
to defend themselves from challenges on a regular basis. Each
litigant should have the confidence of knowing that their case will
be heard on its merits and not on the basis of public or political
pressure. The law commands allegiance only because it commands
respect and it can only do that if the public believes their judges
are neutral.
Reducing the term between retention elections would also discourage
qualified applicants from seeking judicial positions.
In response to Senator Donley's recommendation that the term in the
proposal be raised from four to six years he noted that every
person appointed to the court of appeals faces the voters at the
first general election, three years after appointment. The eight
year retention term only starts after they have faced the voters
that first time. This gives voters the chance to look at a judge
right away and evaluate the job.
Currently supreme court judges have a 10 year retention term,
superior court judges have six years, and the district court four
years. Eight years for the court of appeals fits right in and that
is why the legislature chose eight years in 1980 when it created
the court of appeals. Six years would give it the same term as the
superior court, which is a court with less responsibility and has
to make fewer controversial decisions. To compromise and change the
term to six years would have a very negative affect on the court of
appeals.
SENATOR PHILLIPS asked when the court of appeals was established.
MR. CHRISTENSEN said he thought it was 1980.
CHAIRMAN THERRIAULT noted that Bill Cotton was online to testify
and that a three page sheet from the Alaska Judicial Council was in
committee packets.
BILL COTTON, Executive Director of the Alaska Judicial Council,
testified that the council is a small agency in the judicial branch
of government and separate from the court system. They are charged
with investigating and screening judicial applicants and with
evaluating the performance of judges and making the evaluation
information and retention recommendations available to the public.
The council opposes SB 159 for a number of reasons; first he wanted
to refute the statement made by Senator Donley that Alaska has less
oversight and public scrutiny of judges than most other states.
This is simply not the case even in the states that have shorter
terms. There is not another state that surveys every attorney in
the state, mails a summary of the survey to every voter and puts
the detail of the survey on the Internet.
The implication that Alaska Court of Appeals terms are longer than
other states is not the case. Most states that have intermediate
appellate courts have terms that are eight years or longer.
The council believes this would have a marginal discouraging effect
on qualified applicants, particularly those attorneys with stable
practices in the private sector.
By increasing the number of judges that are on the ballot for
review the focus is taken off the individual judges and placed on
the group. Last year there were 30 judges up for review which made
it difficult to thoroughly evaluate each one and difficult for the
voters to clearly understand each judge's record. Although the
intent of the bill is to increase review, it may have the opposite
effect.
Costs will be increased marginally if SB 159 passes. The Judicial
Council filed a small fiscal note and there will probably be a
small cost from the Division of Elections.
Most importantly, this upsets the balance setup by the framers of
the constitution between judicial accountability and judicial
independence. Judicial accountability is a critical element of the
council's job but judicial independence is critical as well. It is
one of the basic principles upon which our country was founded;
judges are supposed to protect the rights of citizens regardless of
who is displeased. "We want judges who are fair, fast, polite,
smart but we want and need judges who decide cases on the law not
who the parties are and not who is going to make campaign
contributions and not what is temporarily popular." The different
governmental branches have different purposes. The governor and
legislature is elected to carry out a political agenda while judges
are selected to decide cases on the law and the constitution. The
delegates to the constitutional convention discussed the issue of
selecting, evaluating and retaining judges at length and they voted
overwhelmingly to not reduce the term of the only appellate court
discussed which was the supreme court from ten to six years.
On the whole, the system is excellent and it is respected across
the country and world. The council urges the balance not be upset
with the proposal.
CHAIRMAN THERRIAULT asked Senator Donley whether he had a question
about Mr. Cotton's statistics.
SENATOR DONLEY replied he would like to respond generally to the
testimonies. First he would like copies of Mr. Christensen's
research so he could compare the differences with his research. He
disagreed with the last research they received from the Judicial
Council. States that were listed as merit states had elected
judges. There are few states that have a pure merit system like
Alaska does. His research indicates that just seven states don't
have either legislative confirmation or "some other lower level of
judges being elected." It's important that there is greater
accountability for the lower level judges because that affects what
cases the higher level judges will see. Therefore, "to ignore the
fact that you're electing the lower judges when you talk about the
accountability of the upper judges, I think, is not logical and not
fair."
He didn't agree with the argument that reducing length of the term
would slow the election process because people wouldn't have time
to review all the judge's records. He pointed out there are only
three judges on the court of appeals.
He didn't agree that changing the length of the term for the court
of appeals would upset the balance of the constitution because it
was created by the legislature years after the constitution was
written.
SENATOR DONLEY thought a vast number of Alaskans would agree with
him that eight years is too long between elections for this type of
officials. In fact, the polling numbers the legislative majority
gathered shows the public agrees.
HB 159 does not abandon the merit system, "what's before this
committee is going from eight to four or eight to six [years] or
whatever option there is and I'm suggesting from eight to four, I'm
not suggesting-or eight to six- I'm not suggesting the abandoning
of the merit system here. But I do suggest that we are an
extraordinarily generous and long terms of office compared to the
lack, through the pure merit system states that are out there and
not considering that all these many many the vast majority of
states have some degree of elected judicial officials in their
process."
SENATOR DONLEY disagreed with Mr. Christensen's suggestion that the
court of appeals has been uncontroversial. He thought looking at
the efforts of the current legislature with respect to evidence of
rule 404(b) shows that this court of appeals frequently ignores the
intent of the legislature and poses their own political view on the
evidence rules. "I say that because, for many years, as judiciary
chair, we attempted to simply bring Alaska into conformance with
the meaning of evidence rule 404(b)." The effort was to have the
language in Alaska be interpreted the same way the federal courts
interpreted the language but the court of appeals has blocked that
for many years.
CHAIRMAN THERRIAULT agreed with the assessments. He asked Senator
Donley to look at Mr. Christensen's data and point out any flaws.
Although he hasn't felt as much criticism of the court of appeals
as Senator Donley, he is probably just unaware of where the problem
lay in the situation just described.
SENATOR DONLEY gave as another example, the interpretation of the
statute that requires the mandatory 99 year sentence for
individuals who have committed multiple murders, torture murders,
and of murder of a police officer or fireman in the line of duty.
The court produced an opinion saying the person had to be notified
at the time of sentencing that they might be subject to that
sentence. That is very unusual in American jurisprudence because
sentencing issues are usually separate than the charging issues.
The Department of Law disagreed with this decision and is another
example of their being controversial.
CHAIRMAN THERRIAULT commented that one of the issues that weighs on
him personally is "trying to get good private sector attorneys
interested in the judiciary. I think we've had a problem with that
and part of it just might be that we've just had democratic
governors and they appoint from the end of the spectrum that I
would perhaps gravitate to the other end. Tony Knowles is termed
out here so we might have a bite at the apple here."
With the three year review and then eight year review they are
coming up for election twice in an 11 period of time. Three years
is probably too short for people see what the judge is about but
the original bill was just four years even though the
recommendation is to change that to six years.
SENATOR DONLEY said he knows the legislation won't be moved that
day and he suggested adopting a CS version that was at least six
years so the debate over the increment could be over six years
rather than four years.
CHAIRMAN THERRIAULT said he agreed with that. He moved an amendment
to SB 159 to have a draft drawn up that will change "four years" to
"six years" and that will be the document that is in committee for
discussion purposes. He asked for objection.
SENATOR DAVIS said she had no objection but she would move the
amendment for him since he is the chair.
CHAIRMAN THERRIAULT thanked Senator Davis. There were no objections
to the amendment. The bill was held in committee.
The meeting was adjourned at 2:37 p.m.
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