Legislature(2023 - 2024)GRUENBERG 120
03/08/2023 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB28 | |
| HB82 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 82 | TELECONFERENCED | |
| += | HB 28 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 82-SELECTION AND REVIEW OF JUDGES
1:49:22 PM
CHAIR VANCE announced that the final order of business would be
HOUSE BILL NO. 82, "An Act relating to the selection, retention,
and rejection of judicial officers for the court of appeals and
the district court and of magistrates; relating to the duties of
the judicial council; and relating to the duties of the
Commission on Judicial Conduct."
1:49:38 PM
REPRESENTATIVE GEORGE RAUSCHER, Alaska State Legislature, prime
sponsor, presented HB 82. He provided the sponsor statement
[included in the committee packet], which read as follows
[original punctuation provided]:
House Bill 82 would bring the Judicial system by to
what was envisioned by the framers of the Alaska
Constitution. First it should be noted that there are
two types of judges. 1. Constitutional Judges:
Superior Court Judges and Supreme Court Justices,
which must be vetted by the Judicial Council (Council)
and the Governor can only select from a list of two or
more names submitted by the Council. HB 82 holds
constitutional judges harmless. The operating
authority of this provision is: Art IV Sec 5. "The
Governor shall fill any vacancy in an office of the
supreme court justice or superior court judge by
appointing one of two or more persons nominate by the
Judicial Council.
2. Statutory Judges: District, Appellate and
Magistrates. The last of the 3 is not in this
legislation. Existing statute currently follows the
Judicial Council nomination process. However, judicial
candidates are subject to the legislature's discretion
on how they are selected, appointed and whether they
are confirmed by the legislature. HB 82 exercises the
legislature's delegated constitutional authority to
set policy on how these statutory judges are selected
to serve on the bench. The operating authority of the
provision is: Art IV Sec 4. "Judges of other courts
shall be selected in a manner, for terms, and with
qualifications as prescribed by law."
Currently, Appellate and District Court Judges are
nominated in a statute defined process that mirrors
the Art IV Sec 5 Judicial Council process.
The Council is structured to give a majority of the
Alaska Bar (Bar) members the control of who gets to be
a judge or justice. The deciding vote in a tie is
given to the ex-officio seventh member, the Chief
Justice. The Chief Justice has voted 79 times to break
ties since 1984.
Additionally, Bar members of the Council are appointed
internally by the Bar with no legislative confirmation
or administrative oversight. Virtually all the
Judiciary Branch is, "beyond the democratic control of
a more non-bias process."
The constitutional framers that sought to protect
upper benches from becoming bias when choosing their
own installed safeguards, which left the lower benches
up to legislative control.
Interesting enough, till now the legislature ceded
100% control, and it mirrors the "constitutional"
Alaska Bar selection controls.
The Alaska Constitutional Convention Judiciary
Committee Consultants wrote, as reported by Vic Fisher
in his book, "Alaska's Constitutional Convention." -
"No state constitution has ever gone this far in
placing one of the three 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 (emphasis added) in putting them in the hands of
a private professional group, however, public-spirited
its members may be.
House bill 82 strikes the "safe" constitutional
balance envisioned by the framers by giving the
governor and the people's representatives an
appropriate say in who sits on the certain statutory
benches. It allows the governor to appoint and the
legislature to confirm who fills district court and
appellate judges. It still allows the Council to
screen and recommend all candidates, but the governor
is not mandated to appoint from only the Bar submitted
list. The Governor can nominate and appoint his own
Judicial Council screened magistrate, district, and
appellate judges.
HB 82 exercises the authority expressly granted in the
constitution, for the legislature and governor to
prescribe how District Court judges and Appellant
Court judges are nominated.
1:52:45 PM
REPRESENTATIVE ALLARD moved to adopt the proposed committee
substitute (CS) for HB 82, Version 32-LS0483\B, Gunther/Radford,
3/4/23, as the work draft. There being no objection, Version B
was before the committee.
1:56:49 PM
The committee took an at-ease from 1:56 p.m. to 2:00 p.m.
2:00:22 PM
REPRESENTATIVE RAUSCHER deferred to his staffer, Mr. McKee, to
provide a summary of changes in Version B.
2:00:43 PM
RYAN MCKEE, Staff, Representative George Rauscher, Alaska State
Legislature, on behalf of Representative Rauscher, prime
sponsor, provided a summary of changes in the proposed CS to HB
82, Version B, which read as follows [original punctuation
provided]:
1. Title change;
Adds: "Selection of magistrates" to tile.
Adds: Relating to the conduct of magistrates; and
relating to the impeachment, disqualification,
suspension, removal, retirement, and censure of
magistrates, to the title.
2. Body of Bill;
Removes magistrates from the approval and rejection
process on the ballot that all other judges are
subject to. Sec 1, Sec 2, Sec3, Sec 4, Sec 5, Sec 6,
Sec 7, Sec 8, Sec 9, are all eliminated.
Adds magistrates to the legislative confirmation
process.
Streamlines the recommendation process for the
Judicial Council;
• Version\A had a two tier system of nominations,
the Judicial Council nominated, and if the
governor did not like nominations, he then could
nominate his own.
• Version\B both the Governor and Judicial
Council simultaneously nominate on the same time
frame.
Eliminates magistrates from the judicial report
associated with removal and retention process.
Retains magistrates in the Commission on Judicial
Conduct and impeachment process.
2:02:17 PM
REPRESENTATIVE EASTMAN asked why the changes in Version B were
being proposed.
REPRESENTATIVE RAUSCHER stated that the purpose was to add
"magistrate" (indisc.), which was omitted from the original
version of the bill.
REPRESENTATIVE EASTMAN attempted to clarify whether magistrates
were being removed from or added to the retention removal
process.
2:03:48 PM
REPRESENTATIVE RAUSCHER clarified that Version B would eliminate
magistrates from the judicial report associated with the removal
and retention process; however, the proposed CS retained
magistrates in the Commission on Judicial Conduct and
impeachment process.
CHAIR VANCE welcomed invited testimony from former lieutenant
governor Loren Leman.
2:04:49 PM
LOREN LEMAN, former lieutenant governor, stated his support for
HB 82. He shared a personal anecdote recounting his experience
as a freshman in the Sixteenth Alaska State Legislature. He
opined that the process for selecting judges was a detriment to
public policy in Alaska. He recalled that the consultants to
the Alaska Constitutional Convention [1955-1956] had advised
against placing power in the hands of a private professional
organization. He remarked that that with the exception of
Justice Craig Stowers, strict constructionists had been denied
appointment to the Alaska Supreme Court. He suggested that
every governor since statehood had complained about the limited
choices presented to them. He argued that although HB 82 would
not immediately solve the imbalance of judicial temperament on
the Alaska Supreme Court, it would be a step in the right
direction. He opined that the bill demonstrated a process with
better balance that would work well for district and appellate
courts. He urged the committee to consider the legislation,
advance it, and support the bill on the House floor. He
characterized HB 82 as a novel approach that would move the
judiciary closer to the concept of "We the people."
2:11:19 PM
REPRESENTATIVE GRAY asked whether the purpose of the bill was to
get judges with a more political agenda on the bench.
MR. LEMAN asked Representative Gray to clarify the question.
REPRESENTATIVE GRAY remarked, "Do you want people to think like
Republicans to give more of a partisan view of the law?"
MR. LEMAN shared his understanding that the intent was to
implement a fair and balanced system for nominating and
selecting judges. He argued that the existing system, which he
termed a "merit plan," wasn't working. He added that under the
current system, strict constructionists "need not apply."
REPRESENTATIVE GRAY sought to verify that Mr. Leman had stated
that the intent was to [select] judges that had no political
agenda and applied the law fairly. He asked whether that was a
fair summation.
MR. LEMAN confirmed that the goal was to select judges who
applied the law fairly.
2:14:33 PM
REPRESENTATIVE EASTMAN asked how the jurisprudence of the
justices on the Alaska Supreme Court compared to other states or
the U.S. Supreme Court in terms of diversity.
MR. LEMAN opined that the Alaska Supreme Court was less diverse.
He shared his belief that the bench was lacking strict
constructionists.
2:15:59 PM
REPRESENTATIVE ALLARD suggested that the voice of the people was
not being heard by the current judicial selection process
because elected officials "had no say." She asked whether Mr.
Leman agreed with that statement.
MR. LEMAN opined that the Alaska Judicial Council was
effectually making selections for the governor by putting forth
two names, one of which the governor would never pick. He said
he would support a provision requiring [the governor's]
selection to be subject to confirmation by the Senate.
REPRESENTATIVE ALLARD asked whether the judicial system in
Alaska was imbalanced.
MR. LEMAN answered yes, adding that the court was "5-0." He
opined that Alaska would be better served with a more balanced
court.
2:20:27 PM
REPRESENTATIVE GRAY inquired about the meaning of the expression
"5-0 court."
MR. LEMAN shared his belief that all five judges shared a
comparable judicial philosophy that was not based on a strict
reading of the Constitution of the State of Alaska.
REPRESENTATIVE GRAY asked Mr. Leman to expound on the uniting
philosophy of the Alaska Supreme Court and to provide an
example.
MR. LEMAN discussed the parental right to privacy, citing
Article 1, Section 22 [Right of Privacy] of the state
constitution.
2:23:40 PM
REPRESENTATIVE GROH sought to confirm that three of the seven
members of the Alaska Judicial Council were appointed by the
governor, as provided by the constitution.
MR. LEMAN responded yes, adding that those members were also
confirmed by the legislature.
REPRESENTATIVE GROH asked Mr. Leman to define the term "strict
constructionist."
CHAIR VANCE asked whether this line of questioning was germane
to the bill.
REPRESENTATIVE GROH understood that Mr. Leman would like
Alaska's judicial system to select more strict constructionists,
which was the basis for his support for the legislation. He
sought to understand the meaning of the term.
2:25:07 PM
MR. LEMAN defined "strict constructionist" as someone who
applied the constitution at face value.
REPRESENTATIVE GROH asked for examples of cases that would have
been decided differently had Mr. Leman's preferred system for
judicial selection been in effect.
MR. LEMAN remarked, "I haven't made that list, but I can tell
you that that particular initiative passed by the people of
Alaska by a large margin would have been one of them on that
list."
REPRESENTATIVE GROH pointed out that initiatives were not cases.
MR. LEMAN indicated that the initiative turned into a case.
2:26:58 PM
REPRESENTATIVE EASTMAN asked whether creating a law school in
Alaska or changing the score required to pass the Alaska Bar
Exam would solve Mr. Leman's concern.
MR. LEMAN said offering more options would be a good idea;
however, he argued that it would not resolve the basic
unfairness in the system, as the system for judicial nomination
and selection was flawed.
2:30:21 PM
FRITZ PETTYJOHN, former legislator, noted that he had been a
member of the Alaska Bar Association (ABA) for 40 years. He
stated that he rejected the philosophy that lawyers should be
agents of social change through the court system. He opined
that an overwhelming majority of ABA members favored judicial
activism, as opposed to judicial restraint. He argued that
there was no balance or diversity in the Alaska judicial system
resulting in a court system that injected itself into public
policy. He believed that the judicial system should be confined
to interpreting the law. He defined the bill as a small step in
the right direction. He expressed his hope that in the future,
the state constitution would be amended to allow the legislature
and the governor some control over the selection of judges. He
encouraged the committee to pass the bill.
CHAIR VANCE inquired about the dangers of uniformity.
MR. PETTYJOHN stated that judicial conservatives like himself
were not represented on the Alaska Supreme Court. He emphasized
the need for diverse philosophies, adding that ideological
conformity was being enforced by the ABA. He characterized the
ABA as a group of self-interested lawyers who get to control who
becomes a judge.
2:38:47 PM
REPRESENTATIVE GRAY asked how changing Alaska's judicial system
to conform with the Lower-48 or the Federal Judiciary would bar
judges [with a certain philosophy], like Ruth Bader Ginsburg or
Clarence Thomas.
MR. PETTYJOHN said he did not understand the question.
REPRESENTATIVE GRAY asked how HB 82 would make the system less
partisan.
MR. PETTYJOHN said he would like to see more judges like
Clarence Thomas on the Alaska Supreme Court. Conversely, he
proclaimed that Ruth Bader Ginsburg believed in advancing her
conception of social justice through the court system, which he
disagreed with; consequently, he said, he would oppose judges
who shared the same political philosophy as Ms. Ginsburg.
REPRESENTATIVE GRAY asked how the Alaska Supreme Court lacked
diversity.
MR. PETTYJOHN said, "Just read their opinions." He asserted
that the record of the Alaska Supreme Court over the past 40
years showed a history of expanding their own power and
restricting the power of the legislature, the governor and
thereby, the people of Alaska.
REPRESENTATIVE GRAY asked whether past decisions would have been
different if more judges like Clarence Thomas had sat on the
bench.
MR. PETTYJOHN exclaimed, "Of course there would be."
2:42:37 PM
REPRESENTATIVE ALLARD remarked, "Are you stating that because
there are more Judge Ginsburg are you telling us that the
court system leans more towards that because you believe that's
who sits on the court system now?"
MR. PETTYJOHN answered, "That is the way the court system is
now. That's because the way the Alaska Bar Association has
determined the court system will be through its power over the
judicial selection."
2:44:26 PM
REPRESENTATIVE ALLARD asked whether there were instances in
which the court had interpreted state law in contradiction to
the legislative intent.
MR. PETTYJOHN asserted that [the Alaska Supreme Court] primarily
"perverted" the constitution to expand their own power. He
shared an example of judicial activism.
2:46:00 PM
REPRESENTATIVE GROH asked whether Mr. Pettyjohn had ever taken a
poll of practicing lawyers across the state to determine the
diversity of their attitudes.
MR. PETTYJOHN recounted a personal anecdote regarding the
Anchorage Bar Association and the legalization of marijuana. He
explained that after practicing law in Alaska for 41 years, he
found the ABA to be overwhelmingly liberal, left wing, democrat,
and [full of] judicial activists.
CHAIR VANCE asked the bill sponsor whether the purpose of the
bill was to allow the legislature to have a voice in the
appointment of judges and judicial officers.
2:48:56 PM
REPRESENTATIVE RAUSCHER likened the judicial selection process
to legislators picking the next legislators. He added that the
goal was to implement a comprehensive system with checks and
balances. He emphasized that the goal was not implement a more
progressive or conservative ideology, reiterating that a
balanced system was the goal.
CHAIR VANCE announced that HB 82 would be held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 82 - Sponsor Statement.pdf |
HJUD 3/6/2023 1:30:00 PM HJUD 3/8/2023 1:00:00 PM |
HB 82 |
| HB 82 - v.A.PDF |
HJUD 3/6/2023 1:30:00 PM HJUD 3/8/2023 1:00:00 PM |
HB 82 |
| HB 82 - Sectional Analysis.pdf |
HJUD 3/6/2023 1:30:00 PM HJUD 3/8/2023 1:00:00 PM |
HB 82 |
| HB 82 - PROPOSED CS v.B.pdf |
HJUD 3/6/2023 1:30:00 PM HJUD 3/8/2023 1:00:00 PM |
HB 82 |
| HB 28 - Sponsor Statement.pdf |
HJUD 3/8/2023 1:00:00 PM HJUD 4/14/2023 1:00:00 PM SFIN 4/23/2024 1:30:00 PM |
HB 28 |
| HB 28 - v.A.PDF |
HJUD 3/1/2023 1:00:00 PM HJUD 3/8/2023 1:00:00 PM HJUD 4/14/2023 1:00:00 PM |
HB 28 |
| HB 28 - Sectional Analysis.pdf |
HJUD 3/1/2023 1:00:00 PM HJUD 3/8/2023 1:00:00 PM HJUD 4/14/2023 1:00:00 PM |
HB 28 |
| HB 28 - Support Letter.pdf |
HJUD 3/1/2023 1:00:00 PM HJUD 3/8/2023 1:00:00 PM HJUD 4/14/2023 1:00:00 PM SFIN 4/23/2024 1:30:00 PM |
HB 28 |
| HB 28 - AMIA Support for HB 28 - 2.9.23.pdf |
HJUD 3/1/2023 1:00:00 PM HJUD 3/8/2023 1:00:00 PM HJUD 4/14/2023 1:00:00 PM |
HB 28 |