HB 63-EXTEND BAR ASS'N BOARD OF GOVERNORS    CHAIR COGHILL announced the consideration of HB 63. "An Act relating to the Board of Governors of the Alaska Bar Association; and providing for an effective date." [CSHB 63(FIN) was before the committee.] 9:19:46 AM CECILE ELLIOTT Staff, Representative Mike Hawker, sponsor of HB 63, explained that the bill would extend the Board of Governors of the Alaska Bar Association (ABA) until June 30, 2021, as recommended by the legislative auditor. The agency found that the board protects the public interest by ensuring that people licensed to practice law are qualified. She continued to explain that Section 2 contains conforming language to clarify that at large members are elected in the same way as other board members. Section 3 requires that members of board complete the voluntary continuing legal education (CLE) credits as set out in the Alaska Bar Rules. She noted that the House Judiciary Committee prepared a letter of intent to support continued CLEs. She highlighted the one continuing recommendation of the legislative auditor was to increase the CLE requirements for attorneys. 9:21:37 AM SENATOR MCGUIRE asked Ms. Elliott if the Legislative Budget and Audit report made any other recommendations. MS. ELLIOTT replied that the one recommendation was to increase CLEs. CHAIR COGHILL commented that the report also recommended the new June 30, 2021 termination date. 9:22:26 AM SENATOR WIELECHOWSKI asked if the sponsor had addressed the 4/9/13 legal opinion from Legislative Legal Services that says the legislature cannot statutorily set a certain number of continuing CLE hours for attorney licensure because it would violate the separation of powers doctrine. MS. ELLIOTT said no. CHAIR COGHILL suggested that Steve Van Goor could help with the question. 9:23:10 AM SENATOR OLSON joined the committee. 9:23:22 AM STEVE VAN GOOR, Bar Counsel, Alaska Bar Association, confirmed that the court has the ability to set the number of CLE hours that lawyers licensed in Alaska are required to meet. He continued to say that while a separation of powers argument could be made, the ABA understands the purpose of Section 3 is for attorney members of the board to set a good example with regard to CLEs. SENATOR WIELECHOWSKI agreed that the Board of Governors should set an example, but questioned whether the requirement would violate the Alaska Constitution. MR. VAN GOOR agreed that the court adopts rules of procedure and substantive rules of conduct under its inherent authority in Section 4.1 of the Alaska Constitution. He acknowledged that a separation of powers argument could be made, but given the intent of Section 3 it didn't seem worth the fight. SENATOR WIELECHOWSKI observed that it's a question of whether a violation of the Alaska Constitution is worth fighting. CHAIR COGHILL suggested Ms. Meade could add to the discussion. 9:26:06 AM NANCY MEADE, General Counsel, Administrative Staff, Office of the Administrative Director, Alaska Court System, said the court doesn't take a position on that particular provision, but Senator Wielechowski raised a valid question. The committee is aware of the issue so it's a policy call whether to put it in statute or not. CHAIR COGHILL commented that it appears to be more a balance of power discussion between the court and legislature than a separation of powers issue. He questioned whether the nine members of the board should be confirmed by the legislature. [The question and subsequent discussion related to an amendment, labeled 28-LS0309\O.2, that was not offered.] MR. VAN GOOR said he couldn't think of an example of an elected local, state, or federal official that also stood for confirmation by their respective legislative body. He cited examples of the mayor of Anchorage, the governor, and the President of the United States. He referenced Section 4.10 of the Alaska Constitution regarding the Commission on Judicial Conduct and highlighted that the public members are appointed by the governor and subject to confirmation, the attorney members appointed by the board are subject to confirmation, but the judges and justices who serve are elected by their fellow judges and justices and are not subject to confirmation. MR. VAN GOOR said the ABA isn't interested in making public office difficult for public members to hold and it's certainly unfortunate if public members have been subjected to a type of cross examination unrelated to their fitness for the appointed position. 9:32:45 AM CHAIR COGHILL characterized the Board of Governors of the Alaska Bar Association as cartel like. Public members face a different type of scrutiny but serve equally on that board. He asked about the openness of the election process. MR. VAN GOOR explained that it's open to any active member of the bar who wants to serve. The board is divided into three districts: the combined second and fourth judicial districts; the third judicial district in Southcentral; and the first judicial district in Southeast. One member is elected by the membership statewide. The letters of intent are published and the individual runs for office like any other elected official. CHAIR COGHILL expressed interest in further discussions because public members seemed to face different scrutiny. 9:35:21 AM SENATOR DYSON asked for written information about how the process in Alaska compares to other states. MR. VAN GOOR agreed to provide the information. SENATOR MCGUIRE suggested that it would probably be helpful if the chair was given a general overview of the Alaska Bar Association and how it is different. MR. VAN GOOR reiterated that the ABA would be happy to provide the information. 9:38:53 AM THOMAS S. OBERMEYER, SR., representing himself, Anchorage, Alaska, stated that he has been licensed to practice law in the state of Missouri for 23 years and has been required to take 15 hours of CLE and 2 hours of ethics every year. This is far in excess of the Alaska Bar Association requirements, yet passage rates on the ABA exam are remarkably low compared to Missouri and other states. He offered his belief that the Alaska bar exam is not a test of minimal competence; it's a test of varying standards and exclusion that serves to restrain trade. He maintained that the ABA can set the passage rates based on the essays, although there is some discussion about transitioning to the Uniform Bar Examination. He relayed that the many practicing attorneys he contacted throughout the state said they found the exam itself had very little to do with their practice of law. He said he was denied reciprocity from Missouri under Alaska Bar Rule 2.2(b)3, which says a person who has failed the bar exam in the last five years cannot be admitted. He maintained that this standard isn't uniform, because others in similar situations have not been denied. MR. OBERMEYER asked the committee to deny the eight-year sunset extension for the Board of Governors of the Alaska Bar Association. In the past the extension was four years and he would suggest no more than a two-year extension. SENATOR MCGUIRE asked Mr. Van Goor why Mr. Obermeyer was being denied reciprocity when others are not. MR. VAN GOOR explained that the bar rule regarding reciprocity admission has a public protection basis. Originally it said an individual who has taken and failed an Alaska bar examination would never qualify for reciprocity. That rule was changed to say a person cannot apply for reciprocity admission if the person has taken and failed any bar examination within five years. Mr. Obermeyer is not being singled out; it is a requirement that would apply to any person seeking admission from a reciprocal state. SENATOR MCGUIRE asked if the ABA was considering the universal multi-state test in lieu of the essay. MR. VAN GOOR responded that Justice Daniel Winfree asked the board to look at the Uniform Bar Examination (UBE), which has been proposed by the National Conference of Bar Examiners. It consists of the multi-state bar exam, the multi-state performance test, and the multi-state essay examination. In addition, an applicant for admission to the ABA has to pass the multi-state professional responsibility exam. The difference between the UBE and the current exam is that the essay and performance portions would be drafted by the National Conference of Bar Examiners. The grading would continue to be done in Alaska except for the multiple choice portion which would be graded by the National Conference of Bar Examiners. MR. VAN GOOR said it's also important to keep in mind that the ABA does not restrict the number of times a person may sit for the Alaska Bar exam. For 2010-2012, the overall passage rate was 65 percent. For first time takers the passage rate was 77 percent, but for re-applicants the passage rate was 32 percent. The Alaska Bar exam is excellent and in the bar's opinion it works. 9:52:16 AM SENATOR WIELECHOWSKI expressed concern with Section 3 and the legal opinion that "a statute prescribing required CLE hours would violate the separation of powers doctrine." He asked the chair if he would consider removing that section from the bill. CHAIR COGHILL offered his belief that it was within reason, and that it was worth pushing the legal debate. SENATOR WIELECHOWSKI quipped that could be an example of legislative overreach that needed a task force. CHAIR COGHILL opined that it pushes against the right edge. 9:54:31 AM SENATOR MCGUIRE offered her belief that it was wrong to say that there is no opportunity for the state to reach in and ask for higher standards. CHAIR COGHILL said that as long as he was chair he wasn't opposed to continuing the discussion. SENATOR WIELECHOWSKI clarified that he was not arguing that it wasn't a good idea to hold the members to a higher standard; he was arguing that Section 3 goes against a legal opinion. The chair specifically asked legislative counsel if the legislature can statutorily direct the Board to require certain CLEs. The legal opinion specifically said that "a statute prescribing required CLE hours would violate the separation of powers doctrine." 9:57:49 AM SENATOR MCGUIRE moved to report CS for HB 63, version O, from committee [with individual recommendations] and attached zero fiscal note. 9:58:07 AM CHAIR COGHILL objected to say he tips his hat to the attorneys that work with the Board of Governors and do continuing education and pro bono work. He removed the objection. 9:58:36 AM CHAIR COGHILL announced that, without objection, CSHB 63(FIN) moved from Senate Judiciary Standing Committee.