Legislature(2019 - 2020)BELTZ 105 (TSBldg)
04/12/2019 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SJR3 | |
| Confirmation Hearing | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SJR 3 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
SJR 3-CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
1:32:44 PM
CHAIR HUGHES announced that the first order of business would be
SENATE JOINT RESOLUTION NO. 3, Proposing an amendment to the
Constitution of the State of Alaska relating to the membership
of the judicial council.
1:33:26 PM
SCOTT OGAN, Staff, Senator Mike Shower, Alaska State
Legislature, Juneau, introduced himself.
1:33:48 PM
SENATOR SHOWER, paraphrased his sponsor statement, which read as
follows:
SENATE JOINT RESOLUTION NO. 3, Proposing an amendment
to the Constitution of the State of Alaska relating to
the membership of the judicial council.
Proposing an amendment to the Constitution of the
State of Alaska relating to the membership of the
Judicial Council.
Alaska's Constitution Art 1 Sec 2 states, "All power
is inherent with the people. All government originates
with the people, is founded on their will only, and is
instituted solely for the good of the people as a
whole."
Passage of SJR 3 will help restore this aforementioned
principle, as noted by the Constitutional Convention's
professional consultants, "These sections in
particular go a long way toward withdrawing the
judicial branch from the control of the people of the
state and placing it under that of the organized bar."
The constitutional convention professional consultants
also said, "the convention has gone farther than is
necessary, or safe, in putting them (Judicial Council)
in the hands of a private professional group, however
public spirited its members may be."
1:35:03 PM
SENATOR SHOWER continued.
Senate Joint Resolution 3 places a constitutional
amendment on the next general election ballot that
would allow the voters to decide whether the
membership of the Alaska Judicial Council Bar members
should require legislative confirmation of all
members.
Currently, only public members are subject to
legislative confirmation. Alaska is one of a handful
of states that does not require legislative
confirmation of member of the Bar to serve on Judicial
Council.
SJR 3 would increase the public's voice on the
Judicial Council through legislative confirmation of
the members of the [Alaska] Bar. Currently, the
attorney members are selected by the Board of
Governors of the Bar Association and are not currently
subject to legislative confirmation as they are in
many other states. The lack of legislative
confirmation is a stark glaring oversight when all
members of every other Alaskan regulatory or quasi-
judicial agency are subject to confirmation according
to Article 3 Section 26 of the Alaska Constitution.
1:35:53 PM
SENATOR SHOWER continued.
The sponsor of this legislation believes that that
[the Alaska] Bar has too much unilateral influence on
who is ultimately submitted to the Governor for
consideration of becoming a judge or justice.
Alaska's current crime wave requires a wholistic
approach in considering all aspects of the criminal
justice system. In some states, judges run for popular
election, with "hang em high" judges often winning by
popular affirmation.
This measure will still protect the integrity of
judicial temperament and impartiality with greater
accountability by the people's representatives.
1:36:23 PM
SENATOR SHOWER continued.
SJR 3 will still put the Chief Justice in a perceived
and sometimes actual conflict of interest. The
Judicial Council must act by a concurrence of 4
members, as required by Article IV of the
constitution.
According to the Judicial Council Bylaws (Article V,
Section 1), the Chief Justice normally does not vote
on any matter coming before the council except in
those instances, quoting the Bylaws, "when to do so
could change the result." Because of this provision in
the Council's bylaws, on those occasions when the six
regular voting members split 3-3, the Chief Justice
suddenly morphs from a non-voting member of the
Council into the crucial deciding vote on whether an
applicant will be forwarded to the Governor or not.
Inevitably, this empowers the Chief Justice to use
inclusion or exclusion of an applicant as a means of
influencing who will be among his or her peers on the
bench. It is even more alarming when this occurs
during a Supreme Court nominating vote and in fact,
these tie-breaking votes actually occurred on each of
the last two Supreme Court vacancies.
SJR 3 provides a cursory level of legislative
oversight to members of the [Alaska] Bar that serve on
the Council. The [Alaska] Bar having unilateral power
to appoint who selects judges that the Governor can
consider, is an inherent conflict of interest to the
profession, and casts doubt on their objectivity with
the judicial temperament and philosophy of the
candidate.
1:37:40 PM
SENATOR SHOWER continued.
The tie votes on the Council are especially troubling
when it involves a split of all three public (non-
attorney) members voting one way, and all the attorney
members voting the opposite way. Though rare over the
course of the Council's history, these attorney/non-
attorney vote splits have happened much more
frequently in the past few years.
From June 22, 2012 Oct 10, 2013, there were five
attorney/non-attorney split votes, in which all three
public members voted to send an applicant's name to
the Governor, but the Chief Justice sided with the
attorney members and turned down the applicant.
I urge your support for SJR 3 and the additional
legislative oversight it would provide to the members
of the Bar on Judicial Council.
1:38:18 PM
SENATOR SHOWER offered to provide context by referring to the
three branches of government, the executive branch, the
legislative, and the judicial branch. He offered his belief that
allowing a judge to be picked from within their own ranks
without a voice from the people is like allowing the governor to
pick the next governor from a pool of governors or legislators
picking who the next legislators will be from a pool of
legislators. He did not think most people would think this a
reasonable approach. In this case, the state is allowing
attorneys to pick who the next judges are going to be.
SENATOR SHOWER asked to read from an article in the Federalist
Papers No. 39, "The Conformity of the Plan to Republican
Principles," by James Madison. He noted it is written in old
English. He read an excerpt from paragraph 2.
The first question that offers itself is, whether the
general form and aspect of the government be strictly
republican. It is evident that no other form would be
reconcilable with the genius of the people of America;
with the fundamental principles of the Revolution; or
with that honorable determination which animates every
votary of freedom, to rest all our political
experiments on the capacity of mankind for self-
government. If the plan of the convention, therefore,
be found to depart from the republican character, its
advocates must abandon it as no longer defensible.
He read an excerpt from paragraph 4:
If we resort for a criterion to the different
principles on which different forms of government are
established, we may define a republic to be, or at
least may bestow that name on, a government which
derives all its powers directly or indirectly from the
great body of the people, and is administered by
persons holding their offices during pleasure, for a
limited period, or during good behavior. It is
ESSENTIAL to such a government that it be derived from
the great body of the society, not from an
inconsiderable proportion, or a favored class of it;
He read an excerpt from paragraph 5:
Even the judges, with all other officers of the Union,
will, as in the several States, be the choice, though
a remote choice, of the people themselves, the
duration of the appointments is equally conformable to
the republican standard, and to the model of State
constitutions.
SENATOR SHOWER stated that the process outlined in the
[Constitution of the State of Alaska] for selecting judges in
Alaska, in his view, is not republican as defined by James
Madison in The Federalist No. 39 and guaranteed in Constitution
of the State of Alaska in Article IV Section 4. He said that
Alaska's Judicial process is un-republican because it grants
power [to one of three] branches of the state's government to
judicial nominees who are not even the remote choice of the
people. Instead, they are the choice of the Alaska Bar
Association, a private organization consisting of a
disproportionate portion of the population, about 4,500 people
or 0.6 percentage of the state's population. This is the reason
for SJR 3 to allow the public a voice in selecting judges by
allowing them to select who serves on the Alaska Judicial
Council.
1:41:43 PM
MR. OGAN said that SJR 3 would give the legislature the ability
to confirm the members of the bar that are appointed to the
Alaska Judicial Council. As the sponsor said, Article I, Section
2 states that "All political power is inherent in the people.
All government originates with the people, is founded upon their
will only, and is instituted solely for the good of the people
as a whole."
He said that Alaska's unified court system is very efficient. He
said that there are advantages to have an independent judiciary
with an independent body free from elections, and campaign
donations. The framers were mindful when they made the decision
to set up a merit system.
MR. OGAN said that the sponsor supports that philosophy. The
disadvantage is that the branch of government that is supposed
to provide the checks and balances has no corresponding checks
from the citizens. In contrast, many states have county courts
and other jurisdictions that challenge superior court's
assumptions or rulings or present reasonable arguments why they
should rule one way or the other. Further, many other states
confirm members of the bar.
He said he fully expects the Alaska Supreme Court to recuse
itself if a constitutional challenge occurs with SJR 3. He
anticipated the Alaska Court System would oppose the measure. He
offered his belief that the Alaska Supreme Court has shown its
bias by opposing this. He said that the Alaska Bar Association
(ABA) will not say that the founders ignored the wisdom of the
professional consultants it hired. He said that the Judiciary
Committee in the Constitutional Convention consisted of five
lawyers and two laymen. According to the record, the purportedly
fair and balanced committee quickly agreed to follow principles
suggested by the American Bar Association and the professional
civic groups. The Judiciary Committee deliberately designed the
Alaska Judicial Council with a weighted balance to easily
prevail over the people's representatives in a close call. The
Committee of the Day created a judicial oligarchy to empower the
Alaska Bar Association as the sole source power of this branch
of government. He said that the sponsor finds this very
troubling. He characterized it as reminding him of the fable of
democracy with a committee comprised of five wolves and two
lambs deciding what is for lunch.
1:45:07 PM
MR. OGAN said that Vic Fisher, the last surviving constitutional
founder wrote a book, in which he said, "the main features of
the proposed judicial council system were unity, simplicity,
efficiency, accessibility, independence for the executive and
legislative branches and accountability to the people."
MR. OGAN said that regrettably the accountability to the people
in the selection of judges got left on the table. Only a smidgen
of accountability is left to the people, when the bar-controlled
council evaluates judges and tells citizens how to vote on
retention during election.
1:45:52 PM
CHAIR HUGHES asked whether he was quoting from Vic Fisher and
when the quote started and ended.
1:46:02 PM
MR. OGAN re-read, "The main features of the proposed judicial
council system were unity, simplicity, efficiency,
accessibility, independence for the executive and legislative
branches and accountability to the people."
MR. OGAN restated that regrettably accountability to the people
in the selection of judges got left on the table. Only a smidgen
of accountability is left to the people when the bar-controlled
council evaluates judges and tells citizens how to vote on
retention during election. That is really the only time the
people have a say in this, he said.
MR. OGAN acknowledged that a minority of three members are
confirmed by the legislature and the chief justice weighs in if
there is a split vote. He reiterated the sponsor's statement as
noted by the Constitutional Convention's professional
consultants, "These sections in particular go a long way toward
withdrawing the judicial branch from the control of the people
of the state and placing it under that of the organized bar."
He read, "No state constitution has ever gone this far by
placing one of these three coordinate branches 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 necessary or safe in putting them in the hands of a
private, professional group however public spirited its members
may be."
SENATOR SHOWER agreed with the constitutional consultants that
the convention went to far when it placed the entire judiciary
branch under the control of the Alaska Bar Association.
1:48:19 PM
CHAIR HUGHES asked whether he knew what the response was from
the constitutional convention to the consultants.
MR. OGAN responded that it apparently ignored them. He said you
might say the five wolves had the lambs for lunch.
CHAIR HUGHES said the foundation of government is a separation
of powers doctrine. She said it also relies on the check and
balances between branches. She asked what other check and
balances the legislature has on the judiciary branch other than
the appropriation process or adjusting a court rule.
MR. OGAN said the legislature attempts to deal with
constitutional questions from time to time. He offered his
belief that the frustration is that some legislators believe
that at times the Alaska Supreme Court legislates from the
bench. He said that checks and balances are an important part of
democracy and the sponsor is not attempting to undermine or
politicize it. He said the Constitution of the State of Alaska
bans political consideration [for appointees] to the Alaska
Judicial Council. That ban would apply to the legislature during
[the appointment and confirmation process.]
1:50:50 PM
CHAIR HUGHES said she appreciated the premise that this
resolution is based upon, that "All political power is inherent
in the people. All government originates with the people, is
founded upon their will only, and is instituted solely for the
good of the people as a whole." Therefore, she will keep an open
mind, she said. She indicated that [the committee] has received
substantial opposition to the resolution. She emphasized the
importance of checks and balances. Part of the checks and
balances are achieved by the confirmation of the three public
members appointed to the Alaska Judicial Council. The committee
will hear from an appointee to the Judicial Conduct Commission
later today. Those appointees are all confirmed by the
legislature, which provides some additional checks and balances.
However, the judiciary's checks and balances on the legislature
is quite high since it can overturn and determine laws the
legislature has passed are unconstitutional.
She emphasized the need for checks and balances in the
discussion. She offered that part of the opposition is because
[Alaska] has a merit-based system. She acknowledged that the
judicial process is politicized, and corruption occurs in many
states in the Lower 48. For example, during her travels to the
Lower 48, she has observed that signs are everywhere when judges
are up for election. Although many states have an election
process, she offered her belief Alaska's system is unique. She
asked how Alaska's system compares to ones in other states.
MR. OGAN said he was unsure of the exact number of states that
nominate their judges through a judicial council, but only a
small handful do not have legislative confirmation of
appointees.
CHAIR HUGHES stated that another point of those who are opposed
[to SJR 3] is that the system is working fine.
1:52:55 PM
SENATOR SHOWER said he agrees with the phrase, "If it's not
broke, don't fix it." However, he questioned if it does work. He
said that historically when the vote is split, the public
members of the Alaska Judicial Council (AJC) vote one way, and
the attorneys vote another way. He said that the chief justice
of the Alaska Supreme Court always sides with the attorneys. He
acknowledged that it could be argued that this is because of the
data and that the decisions are based on merit. However, he
reiterated that it was troubling to him when the public members
vote one way and the attorneys, and the Alaska Supreme Court
chief justice vote the opposite. He pointed out that the Alaska
Bar Association consists of a very small subset of the
population. He characterized the attorneys as a group who have
the same mindset due to their training and duties, which results
in a more homogenous group. Of course, the same thing could be
said about the military or the legislature, but the legislature
consists of Republicans and Democrats, he said.
He expressed further concern that the opposition is coming from
the Alaska Supreme Court. It reminded him of military strategy,
that the closer the military gets to a target that is really
near and dear to the enemy's heart, the harder they will fight.
He wondered if he was on to something with this resolution, that
if [the opposition] is fighting hard, there may be something [to
examine]. Perhaps he has identified something that could provide
a better balance to the system, which should be considered. He
clarified that when he speaks of balance, he means
representation by the people, which is why he has introduced
this resolution.
SENATOR SHOWER said he anticipates opposition, which to date has
come mostly from lawyers and the Alaska Supreme Court. At the
end of the day, Alaska is a representative republic and the
people have a voice, he said. He emphasized that all power is
derived from the will of the people. A full one-third of the
government has complete power over the executive and legislative
branches, he said. He found that to be troubling. He offered his
belief that the people have little to no voice in the selection
of the attorney members. He said a small group pick members from
its own pool to serve on the AJC, who are subsequently selected
by the governor, and serve on the bench. He said that [the
Alaska Supreme Court] can strike down laws and make decisions
about everything the legislature does. He did not think the
court would be happy if a legislator brought legislation before
them to argue. He characterized it as a "one-way street." He
said what drives his decision-making process is the will of the
people and the Constitution of the State of Alaska.
1:57:08 PM
CHAIR HUGHES agreed that standing up for the people is
important. She said she can speak to this in public. However,
until the ethics law is fixed, she cannot work privately on
health care laws [due to a potential conflict of interest]. In
fact, she had to withdraw a bill that "stood up" for the people
and the health-care industry. The health insurance industry is
not happy about the bill, she said. However, she must consider
what is right for the people, she said.
She said that she has thought about democratic and
representative government and the potential for corruption. She
emphasized that she is not implying in any way that the Alaska
Bar Association is corrupt. However, when the attorney members
are picked from the pool, it is a less democratic process. She
reviewed the three branches of government, noting the
legislative branch is a mix of parties, the executive branch is
typically one party or another, and the judiciary branch is
supposed to be nonpartisan. However, she said her research shows
that the legal profession in Alaska in the 1950s and 1960s
tended to be moderate and slightly left of center. She said that
has changed, depending on the source of the research, such that
68-74 percent of attorneys now identify themselves to be on the
left.
CHAIR HUGHES said that the legislature can create balance. She
emphasized her belief that when she and her colleagues are
voting on confirmation hearings, they consider candidates based
on merit. She explained that they examine qualifications and
merit. If SJR 3 were to pass, it would not mean that merit is
being disregarded since the pool would still come from the
Alaska Bar Association. Thus, if this resolution were to pass,
every candidate would be considered acceptable based on their
merits and qualifications. She said the opposition seems to
think it would be politicized, and it might be for some. She
said that members of the executive branch are all confirmed,
including the attorney general. She offered her belief that
merit would not be removed from the process.
2:01:04 PM
SENATOR MICCICHE joined the meeting.
2:01:17 PM
SENATOR SHOWER reiterated that the Constitution of the State of
Alaska does not allow the process to be politicized, but we are
humans. He said he does not believe that judges are absolutely
unbiased since they are human, although he is sure they do their
best. He offered his belief that SJR 3 gives a balance of who
sits on the Alaska Judicial Council. The council selects and
forwards the names of candidates for potential judges to the
governor and the governor selects the judge.
2:02:34 PM
SENATOR KIEHL appreciated the discussion of principle. He
acknowledged that the legislature has considered appointees who
are not of the majority party in the legislature and have voted
them down without a single word of debate. He questioned whether
that is always apolitical. He asked for further clarification if
the Alaska Supreme Court has ever elected a chief justice prior
to the retention vote of the people.
MR. OGAN answered that he was unsure.
SENATOR SHOWER deferred to anyone who may know the answer.
2:04:31 PM
SENATOR KIEHL said it is important to him, since it is important
to have a vital check of the people. He said Alaskan voters have
a say in who serves on the bench. He characterized it as a
critical check. He said he would be surprised if anyone was
elected to a three-year term as chief justice to the Alaska
Supreme Court without having gone before the voters for a
retention vote. He said he was intrigued by the James Madison
quote:
Even the judges, with all other officers of the Union,
will, as in the several States, be the choice, though
a remote choice, of the people themselves, the
duration of the appointments is equally conformable to
the republican standard, and to the model of State
constitutions.
He said that if a judge has been retained by the people, the
public has weighed in and made the decision. He offered his
belief that the vote reflects the will of the people. He asked
who the consultants to the Alaska Constitutional Convention were
and if they were Alaskans or consultants from the Lower 48.
SENATOR SHOWER said that the "remote voice of the people" would
refer to a voice in the selection process. He said that this
happens in some states and in others, such as Alaska, it does
not. He said the distinction is whether the judges are directly
elected. He said that there is not any direct line from the
voters to the three people who serve on the Alaska Judicial
Council. He reiterated that historically, when the chief justice
sides with the three attorney appointees, these four individuals
have made the decision of which names to forward to the
governor. He maintained that means the people would have no
voice in the process. Instead, the decisions are made by a small
subset of the population. He acknowledged that the three public
members are confirmed by the legislature, but the other four are
not confirmed, which he found most concerning.
2:07:53 PM
SENATOR KIEHL offered that when the chief justice is retained by
a vote of the people, it means that at least 60 percent of the
Alaska Judicial Council voting members are confirmed by the
legislature. He asked for further clarification on consultants
for the constitutional convention.
MR. OGAN responded that he referenced Vic Fischer's book [,"To
Russia with Love, An Alaskan's Journey."] He read, "The
consultants suggested the number of revisions that would in
their view democratize the proposed system by providing for
legislative confirmation the attorney members of the judicial
council, adding a superior court judge and another lay member to
the membership of the council and other changes. However, the
suggestions were not accepted by the meeting of the committee
chairman and never reached the convention floor."
MR. OGAN surmised that if they were advising the Alaska
Constitutional Convention Judiciary Committee that someone
considered them qualified.
2:09:38 PM
CHAIR HUGHES asked for further clarification on how many
attorneys drafted the Constitution of the State of Alaska.
SENATOR SHOWER offered to research it and report back to the
committee.
2:10:09 PM
SENATOR KIEHL recalled the sponsor referenced a series of split
votes by the Alaska Judicial Council. He asked how many total
votes were made during the 18-month period that resulted in five
split votes. He further asked for the number of split votes
going back over a longer period and whether this is a system
that has a consistent problem or if there are a few outlier
votes.
SENATOR SHOWER offered to research it and report back to the
committee.
2:11:43 PM
CHAIR HUGHES said judges are sworn to uphold the Constitution of
the State of Alaska, yet people weigh in against this.
SENATOR SHOWER observed that SJR 3 seems to be a sensitive area
since it is upsetting people. He offered his belief that most of
the opposition is from the Alaska Bar Association and lawyers.
He offered his belief that the people would want a voice in the
process of selecting judges. He reiterated that the Alaska Bar
Association really gets to make the choice.
2:13:49 PM
CHAIR HUGHES pointed out that this is not giving people a direct
choice over who sits on the bench, but it relates to
confirmation of members appointed to serve on the Alaska
Judicial Council and that group selects names of judicial
candidates to forward to the governor. She offered her belief
that the names selected would be of high merit.
2:14:13 PM
SENATOR MICCICHE said he does not have any personal vendetta
against the court. He pointed out that the court and the
legislature are supposed to be isolated bodies. The courts judge
the legislature's work and define if what is done is
constitutional, which is often not reciprocal. However, the
voters can choose not to retain a judge. He asked whether judges
should be selected by the people. He offered his belief that the
tendency is to send everything to the people to decide. He said
that the reason [the Alaska Bar Association has selected members
of the Alaska Judicial Council] is because they are the experts
in this field. The reason legislators generally make good
decisions is because they are forced to become experts. He said
he is not taking an adverse position on this bill, but he
wondered how much should be sent to the people. He concluded
that Alaska does not have that kind of government.
SENATOR SHOWER said this issue arose when a young man provided
him with his research on this topic, that it was not something
he had considered. He related his personal experience in front
of a court was when he was a major still in the Air Force. He
was ticketed for having a load of wood extending over the
sidewalk. He appeared in uniform and the case was dismissed. His
experience with judges has been very positive.
He was not sure if it would be better to use this process or to
hold elections to determine judges. He acknowledged that voters
vote on whether to retain judges [in Alaska], which is based on
merit and performance. He said that legislators are elected
representatives of the people. However, he maintained that the
people do not have a voice in who selects the judicial branch of
government members. He said he would not propose that Alaska
elect its judge or for the legislature to pick judicial
nominees. However, he said he thinks that it is very reasonable
that the members of the Alaska Judicial Council [be confirmed].
2:18:54 PM
SENATOR MICCICHE said there are reasons for the court to be
independent or it would be a mob rule on every decision. He said
that mob rule is not always the right one. He said the five
split votes does not mean anything to him, but he would like to
understand the problem. He acknowledged that he has been very
frustrated with the courts because they do not always agree with
him.
SENATOR SHOWER asked the record to reflect that he does not have
a vendetta. This issue was brought to him. He has tried to be
clear that the court generally works fine. He reviewed the
Alaska Constitutional Convention related to selection of the
judiciary. He recapped that the Alaska Bar Association
essentially makes the choices of [who serves on the Alaska
Judicial Council and the AJC forwards names of judicial
candidates to the governor]. He characterized it as a small gap
that he is trying to address.
2:21:21 PM
MR. OGAN said that judges and courts have a lot of power over
Alaskans. They have the power to imprison and impoverish people.
The courts can overturn laws the legislature passes. He said he
served in the building for 10 years. He said the litmus test he
would have for the Alaska Judicial Council appointees is if they
would select people who are fair and impartial and will not
legislate from the bench. The Constitution of the State of
Alaska says the bar cannot consider the politics of an appointee
to the Alaska Judicial Council and the legislature would be
constitutionally prohibited from doing the same.
2:24:02 PM
SENATOR KIEHL expressed an interest in hearing from the Alaska
Court System. He offered his belief that the Constitutional
Convention did not miss anything. He said that they required two
branches of government to make a decision. With a regulatory
board, the governor appoints member and the legislature confirms
the appointee. The board can set regulations and fees. The
governor appoints members to the Board of Regents and the
legislature confirms. He said that this seems to be the only
situation that has two and a half members. The governor appoints
and the legislature confirms half of the members of the Alaska
Judicial Council. The AJC screens applicants, and the governor
appoints judges. He offered his belief that more checks in the
process occur with the Alaska Judicial Council, rather than
fewer.
2:25:26 PM
SENATOR SHOWER said he does think [the gap] was overlooked. He
referred to the Alaska Constitutional Convention minutes. He
read, "As noted by the professional consultants, these sections
in particular go a long way toward withdrawing the judicial
branch from the control of the people of the state and placing
it under the organized bar. The convention has gone farther than
necessary or safe in putting them, the judicial council, in the
hands of a private, professional group, however public-spirited
its members may be." He surmised that these people would
disagree that there is more control since the very people
involved in the process say that there is less. He maintained
that the people's voice is being removed from the selection of
who ends up being on the bench and wielding immense power.
2:26:34 PM
CHAIR HUGHES said that the Alaska Bar Association is not part of
the legislature or the executive branch, so she arrives at one
and one-half. She said the governor makes the appointment, but
the legislature only confirms half of the board members.
SENATOR KIEHL said the governor appoints and legislature
confirms some members of the Alaska Judicial Council. The people
vote on retention of the chief justice. It is in the judicial
branch and the Alaska Judicial Council screens applicants for
the governor. He maintained that all three branches are involved
in this process. He said he would like to hear more about the
consultants because the Alaska Constitutional Convention
delegates were elected by the people. The delegates disagreed
with the consultants.
CHAIR HUGHES said that this relates to the appointment process
and not how the judiciary branch and legislative branch work
together.
2:27:57 PM
MR. OGAN offered his belief that only a few judges have been
turned down by an election. He recalled that perhaps only one
other judge was voted down in 40 years. He said he votes no
unless he knows the judge. He said he thinks it is good to get a
little "fresh blood" in there once in a while. He said the non-
retention is a pretty limited check and it is rarely used. He
acknowledged that judges can be removed through the impeachment
process. He offered his belief that this resolution would make a
very small correction in the process.
SENATOR SHOWER offered to research and provide information on
the consultants to the Alaska Constitutional Convention.
2:29:40 PM
SENATOR MICCICHE said he would like to put more emphasized on
understanding the reason the three positions are independent. He
said he appreciated Mr. Ogan's statement that the legislature is
not overly political with respect to the people who are
confirmed. He said, "But that just simply isn't the case." The
legislature "digs stuff up from elementary school and we parade
it out there as though the rest of us should be casting the
first stone." He acknowledged that no one is perfect. He
reiterated that the confirmation process is not apolitical. He
said that a prime example is the Board of Fish. He said that
this sounds like a change that he would support. However, he
maintained he would like to put more time in to determine why
the three positions are independently selected by the technical
experts as opposed to those who will be weighing in politically.
CHAIR HUGHES suggested that doing a background check on
appointees is not something she considers to be political. She
considers it to be part of the qualification and merit check.
SENATOR SHOWER focused his concern that a small subset selects
who serves on the Alaska Judicial Council. He would prefer to
have representatives of the people making those decisions. His
concern is that the ultimate decisions made by the Alaska
Judicial Council could be swayed. Again, less than 5,000 people
are part of the Alaska Bar Association, he said.
2:33:44 PM
SENATOR MICCICHE said this is the second or third time he has
seen this approach since he has served in the legislature. He
said he will be very careful about this measure. He will also
keep an open mind, he said.
CHAIR HUGHES offered her belief that the last iteration would
have added three public members. She said that SJR 3 seems to be
a much smaller tweak and a more reasonable approach.
2:35:33 PM
NANCY MEADE, General Counsel, Administrative Offices, Alaska
Court System, Anchorage, stated that this is a resolution the
Alaska Supreme Court has asked her to oppose. She said that the
reason the Alaska Court System opposes SJR 3 is because it
believes that it is not a harmless change to the Constitution of
the State of Alaska to add confirmation. In fact, it has the
potential to be quite harmful to the judicial independence and
it goes to the administration of justice.
She offered to provide the reasons why the court does not
believe it is a harmless change. She said she has no intent to
disparage anyone's intentions in the legislature. However,
confirmation of appointees often does become something other
than 100 percent merit based. Currently, the appointees by the
Alaska Bar Association to the Alaska Judicial Council are
appointed based on merit. She said that not a lot of people
apply to serve on the Alaska Judicial Council. These are not
considered to be plum positions that are highly competitive with
twelve or fifteen people being voted on, she said. She said that
Ms. DiPietro can provide more information; however, it is often
one, two, or three attorneys who apply. Those attorneys would
run the risk of having "red flags" raised that might be things
said in a legal brief, when they were representing someone in
court or previously made donations to politicians. She said that
these are not things that the Alaska Bar Association members
would be considering when voting on appointees to serve on the
council. She pointed out that Attorney General Clarkson had to
defend himself against things he said in litigation and explain
how those comments may not necessarily mirror his beliefs. She
said she did not agree with the implication that this change is
harmless.
MS. MEADE said that the sponsor and sponsor's staff acknowledged
that the very goal of this is to change the nature of who sits
on the bench. She pointed out the comments in the sponsor
statement about criminal justice and "hang 'em high judges." The
implication is that perhaps some judges are perceived as being
not tough enough when sentencing criminal defendants. She
reiterated that the goal is to get behind who serves on the
bench. She said that the thinking appears to be that if there is
a little bit more check on who chooses the nominees that go to
the governor that it might change the nature of the judges. She
said that is why it goes beyond a harmless legislative
confirmation just like every other board and commission process.
2:39:16 PM
MS. MEADE cautioned that the Alaska Judicial Council is not just
like every other board and commission. The Alaska Judicial
Council is an independent entity created in the Constitution of
the State of Alaska. The Board of Fish and the Board of Barbers
and Hairdressers is not in the Constitution of the State of
Alaska, she said. The council is established specifically as an
independent group. It is in the judiciary article on purpose.
She said the constitutional drafters discussed this provision.
She provided an excerpt from the minutes [in members' packets].
This is not a "stark glaring oversight" that the sponsor
statement indication. This was an absolutely purposeful, well-
thought out and debated provision. There was an amendment during
the Alaska Constitutional Convention to provide for legislative
confirmation of the three attorney members.
MS. MEADE referred to the document she provided to the committee
titled, "Excerpted Minutes of Constitutional Convention." She
said that this describes the whole theory of the Missouri Plan.
She read from the language titled "Page 695", "The theory on the
lay members on the confirmation, they represent the public and
they represent the predominate political thought." She pointed
out that this is 50 percent of the members on the council.
MS. MEADE continued. "The theory on the lawyer members of the
council, they represent the profession, they represent the best
interests of the profession. They represent a desire to have the
best judges on the benches." She emphasized that this was not
accidental.
She turned to a statement by Mr. McLaughlin found above "Page
695," and read: "The whole theory of the Missouri Plan is that
in substance, a select and professional group, licensed by the
state, can best determine the qualifications of their brothers."
She explained that this does not give lawyers any elitist or
special population a say that seems unfounded. She characterized
it as being the same as acknowledging that if you need heart
surgery you might ask other doctors who is the best heart
surgeon. It does not mean that it is put to a popular vote but
rather to contact the people who know their "brethren" as it was
stated at the time of the constitutional convention. They are
best able to determine which lawyers are the ones at the top of
their field.
She continued and read a portion of the following:
The intent of the Missouri Plan was in substance to
give a predominance of the vote to professional men
who know the foibles, the defects and the
qualifications of their brothers. It is unquestionably
true that in every trade and every profession the men
who know their brother careerists the best are the men
engaged in the same type of occupation.
She emphasized that it was not an accident and it is not "willy
nilly" that lawyers get to choose the three lawyers on the
commission. It is very purposeful, she said. She continued to
read excerpts of the minutes:
If you require confirmation of your attorney members
you can promptly see what will happen. The selection
is not then made by the organized bar on the basis of
a man's professional qualifications alone. The
determination of the selection of those people who are
on the judicial council will be qualified by the
condition, are they acceptable to a house and a senate
or a senate alone, which is essentially Democratic or
essentially Republican. No longer is the question
based solely on the qualification ***Page 695*** of
the candidate for the bench.
MS. MEADE remarked that requiring confirmation of the attorney
members was not a generalized discussion of the judiciary
article, which is what the consultants were talking about.
She emphasized the excerpt, "The determination of those people
who are on the council will be qualified by the condition, are
they acceptable to a house and a senate or a senate alone, which
is essentially Democratic or essentially Republican." She
remarked that the Alaska Court System absolutely agrees with
this.
MS. MEADE said that these thoughts from 1959 are exactly the
thoughts that [the Alaska Court System] currently has. This
system has worked well for the last 50 or 60 years. There is not
any need to think that this language that swayed the day in 1959
is any different now. The excerpt goes on to read, "The question
is, will those people whom we set up here on the judicial
council, that we send from the bar, will they be acceptable in
terms of political correctness?"
She said that [the Alaska Court System] does not want that
question coming into play until the very end of the judicial
selection process.
MS. MEADE asked members to flip to the last page of the
constitutional convention excerpted minutes. She said the
amendment overwhelmingly failed by a vote of 4-49. The delegates
overwhelming voted not to have legislative confirmation of the
attorney members. It was not an oversight, but was very
purposeful, she said. She offered her belief that those concerns
hold sway just as well today and [the Alaska Court System] does
not want the qualifications removed or the merit base to be de-
emphasized at all and add politics at that level.
2:44:28 PM
MS. MEADE touched on the votes [of the Alaska Judicial Council]
to emphasize the reason it is not necessary to make any change
[to the process for selecting council members]. The Alaska
constitutional drafters had the benefit of [48] other state
constitutions and the benefit to see what worked well and what
did not work well. She said at least 12 other states do not
require legislative confirmation of their attorney members.
Alaska is not a "lone wolf" in this area and other states were
studied. The Constitution of the State of Alaska is known as the
"gold standard" nationwide in the selection of judges.
There is a balance. Three people are appointed by the governor
and confirmed by the legislature. That is the peoples' voice,
she said. Three lawyers, who are also constituents and regular
Alaskans and citizens. All six people serving on the Alaska
Judicial Council are constituents. The chief justice votes
rarely, only when a tie occurs.
MS. MEADE referred to a handout in members' packets titled,
"Alaska Judicial Council Vote Summaries, 1984-present." This
shows that this is a council that works very well. Since 1984,
which is as far back as the data goes, 1,389 votes have been
taken. She said that 82.5 percent of the votes were unanimous or
5-1. She characterized that as a well-functioning organization.
She offered her belief that this could be said of many other
organizations in this state. During this 35-year period, the
chief justice has voted 75 of 1,389 times. Of the 75 votes, the
chief justice voted 57 times to forward the name to the
governor. She said that most ties were a mix of attorney members
and public members. In one percent of the time, 19 times between
1984 to the present were the attorneys and non-attorneys split.
She emphasized that this does not demonstrate a dysfunctional
organization or an organization in which the attorneys are
bullying the public members. This group gets along and
cooperates well, she said. She said that in 8 of 19 times, the
chief justice voted with the non-attorneys and the remaining 11
times with the attorneys. She characterized it as an
inconsequential difference. She said that there cannot be any
conclusion that the chief justice votes with the attorneys every
time. It is not borne out by the data; however, it does not show
an organization with problems or needs to be adjusted.
2:47:41 PM
MS. MEADE said she wanted to address something that is a little
difficult to broach. She said she thinks that it is fair to say
that there is a thought that changes to the Alaska Judicial
Council is needed because there is a sense that Alaska's judges
are not conservative enough. There's a sense that the judges are
over-empowered or exercising judicial activism from the bench.
She said that the Constitution of the State of Alaska is like
every other constitution in every other state and the U.S.
Constitution does have checks and balances. One of the main
checks and balances for the legislature is that the legislature
can in every session overrule an opinion of the court. The
legislature does this by changing the statute. The legislature
will state in its legislative intent the whole purpose of this
bill is to change the decision of the Alaska Supreme Court or
the Court of Appeals. The legislature can do so up to the point
of a constitutional determination. In our system of government,
someone must have the last say as to what is constitutional and
it is the Alaska Supreme Court. She acknowledged that it
sometimes frustrates the legislature because it passes a bill or
resolution it believes passes constitutional muster, and the
Alaska Supreme Court decides otherwise. She said that if the
Alaska Supreme Court or the Court of Appeals says that its
interpretation is "X," the next session the legislature can pass
a statute to change the law to "Y," based on policy. She said it
frequently occurs and it represents a big "check" on the
opinions from the Alaska Court System.
2:49:25 PM
MS. MEADE addressed the concern and sense that conservatives
cannot become judges. She said that of the 73 judges,
approximately 42 percent were prosecutors, 33 percent were
public defenders at some point in their careers. These
applicants have been business attorneys and public interest
attorneys; and she did not think that it is a fair assessment to
say that it has been hard for certain people to get through the
Alaska Judicial Council because of their politics. Some judges
have attended military schools, Christian schools, public
universities, and private universities. They fish, they fly,
they are in Boy Scouts, and they are involved in athletics. She
offered her belief that a unified liberal bench is a myth. She
said if anyone thinks it is otherwise, to point to something and
she is willing to hold a discussion and would need hard
evidence. She said that Alaska's judges are ranked during the
retention cycle by all the jurors who appear in front of them.
They receive a score based on performance, impartiality,
temperament, fairness, integrity, diligence and overall. The
performance score for Alaska's judges is 4.9 out of 5. She
pointed out that constituents are the ones who sit in front of
the judges for hours and days. She said that the peace officers
and probation officers overall ranking of is 4.5 of 5. In
closing, she stated that Alaska does not have a broken system.
She noted that the performance rating is statewide.
2:51:47 PM
CHAIR HUGHES asked for the dates of the 21 instances when the
chief justice acted as a tiebreaker, in terms of years in which
those occurred so the committee can see the trend and if it is
evenly spread.
MS. MEADE said that there have not been any in the last four
years. She offered to research and provide it to the committee.
2:52:18 PM
SUSANNE DIPIETRO, Executive Director, Alaska Judicial Council,
Anchorage, reviewed the Alaska Judicial Council's procedures,
purposes, and goals. She said she has some information on how
Alaska's judicial merit system fits in with the national system.
She directed attention to the Alaska Judicial Council's bylaws.
She said the Alaska Judicial Council evaluates people who want
to be judges by considering their professional competence,
including written and oral communication skills, integrity,
fairness, temperament, judgment, including common sense, legal
experience, life experience, and demonstrated commitment to
public and community service. These are the qualities that the
council members are evaluating in the applicants.
She said that the council has published very detailed selection
procedures, which are found on its website and published in its
annual report. The Alaska Judicial Council provides the
legislature with its biennial report. She emphasized that the
council is prohibited from considering applicants' political or
religious beliefs.
MS. DIPIETRO said that the council is very proud of its
transparent judicial selection process. Its bylaws are available
in written form and are posted on its website. She said the
council has approximately 15 pages of detailed procedures about
how the council evaluates people who want to be judges, which
includes an important public component of the process. At any
point in a judicial selection process, a citizen can provide a
written letter to the Alaska Judicial Council about any
applicant, or with any opinion or suggestion on how the council
should be doing its job. She said that all of these
communications go to the council members for consideration. She
said that in a formal sense, the council holds a public hearing
for every vacancy in the community where the judge will be
seated. The council has been very gratified, in particular, in
rural areas to have standing room only attendance. She said that
people identify who they believe are the good applicants, and
even more importantly, identify challenges in the community for
the council to assist them in the selection process.
2:55:40 PM
MS. DIPIETRO discussed how the council fits into the national
perspective. She said she welcomed the opportunity to have a
dialogue with the sponsor's office. She said that the Alaska
Judicial Council's staff tracks what is happening in the
national scene in terms of judicial selection. She said that her
data does not support the statement that only a handful of
states do not require legislative confirmation of attorney
members. In fact, her tally shows that 35 states use a judicial
nominating commission in some way to select state judges. The
states all use very different processes. She said that in 18 of
the 35, the bar association appoints the attorney members of the
commission with no further involvement by the governor or the
legislature. In several jurisdictions, several seats are
reserved for legislative appointment. She said that she found
only two states in which the legislature actually must confirm
an attorney member of a judicial nominating commission She said
that her research indicates it is an extreme minority. She said
that the most common template for the judicial nominating
commissions is very similar to the one used by the Alaska
Judicial Council. She said that a roughly equal number of the
non-attorney and attorney members are appointed. She said that
usually the attorney members are appointed by the bar with no
further involvement of confirmation by the governor or the
legislature. The non-attorney members are selected by a variety
of methods, sometimes by gubernatorial appointment or other
ways.
2:58:38 PM
CHAIR HUGHES asked her to provide her chart to the committee.
She further asked if she would provide the composition of
attorney and non-attorney members for the other states.
[SJR 3 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SJR 3 Version A.PDF |
SJUD 4/12/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM SJUD 4/17/2019 6:00:00 PM SJUD 4/19/2019 1:30:00 PM SJUD 4/22/2019 6:00:00 PM |
SJR 3 |
| SJR 3 - Sponsor Statement.pdf |
SJUD 4/12/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM SJUD 4/17/2019 6:00:00 PM SJUD 4/19/2019 1:30:00 PM SJUD 4/22/2019 6:00:00 PM |
SJR 3 |
| SJR3 Fiscal Note.pdf |
SJUD 4/12/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM SJUD 4/17/2019 6:00:00 PM SJUD 4/19/2019 1:30:00 PM |
SJR 3 |
| SJR 3 - Historical Roster of AJC members.pdf |
SJUD 4/12/2019 1:30:00 PM |
SJR 3 |
| SJR 3 - AJC Att -Non Att vote splits - highlighted.pdf |
SJUD 4/12/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 3 |
| SJR 3 - Constitutional Convention Minutues about Judiciary_AJC.pdf |
SJUD 4/12/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 3 |
| SJR 3 - AJC_Court System members and votes info.pdf |
SJUD 4/12/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 3 |
| SJR 3 - Historical Roster of AJC members.pdf |
SJUD 4/12/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 3 |
| SJR 3 - Vic Fisher Constitution book exerpts.pdf |
SJUD 4/12/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 3 |
| SJR 3 Opposition AFL-CIO.pdf |
SJUD 4/12/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 3 |
| SJR 3 Opposition Former Attorney General.pdf |
SJUD 4/12/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 3 |
| SJR 3 Opposition Justice not Politics.pdf |
SJUD 4/12/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 3 |
| SJR 3 Opposition Resolution AFN.pdf |
SJUD 4/12/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 3 |
| JUD Judicial Conduct Mores Resume.pdf |
SJUD 4/12/2019 1:30:00 PM |