Legislature(2019 - 2020)BELTZ 105 (TSBldg)
04/15/2019 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SJR3 | |
| SJR5 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SJR 3 | TELECONFERENCED | |
| += | SJR 4 | TELECONFERENCED | |
| += | SJR 5 | TELECONFERENCED | |
SJR 3-CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
1:34:29 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.
CHAIR HUGHES made general remarks.
1:35:04 PM
At-ease.
1:40:35 PM
CHAIR HUGHES reconvened the meeting. The committee was given an
introduction to SJR 3 on Friday, April 12.
1:42:00 PM
SENATOR SHOWER said some remarks and comments were made at the
last hearing that pivoted from the goal of SJR 3, which relates
to the foundational principles from a constitutional
perspective. He offered his belief that the hearing was "all
about politics." He said he would like to redirect the narrative
to the reason for the resolution.
1:42:49 PM
SCOTT OGAN, Staff, Senator Mike Shower, Alaska State
Legislature, Juneau, on behalf of the sponsor, stated that 13 of
55 delegates at the constitutional convention were attorneys. He
reviewed a list of consultants who assisted the Alaska
Constitutional Convention. Earnest Bartley, Professor of
Political Science, University of Florida authored a 1958 book,
"Principles and Problems of State and Local Government." Dayton
McKean, Ph.D., professor, University of Colorado, Boulder,
worked with the committee on a legislative article. Vincent
Olstrom, Ph.D., professor, University of Oregon, worked with the
committee on the natural resources article. Weldon Cooper, Ph.D.
professor, Department of Political Science, University of
Virginia, worked with the committee on local government. Sheldon
Elliott, Ph.D., Director, Institute of Judicial Administration,
[New York University School of Law, New York, worked with the
committee on the judicial article. Mr. Elliott authored the 1959
publication "Collected Studies on Judicial Administrations."
He elaborated on Mr. Elliott's background in New York. In May
1958, the League of Women Voters in New York asked the institute
to prepare a new judiciary article for the New York State
Constitution. That plan was for a statewide integrated court
system that was centrally administrated and financed.
MR. OGAN continued to list the consultants. Dr. Kimbrough Own,
professor, Louisiana State University, worked on the committee
on style and drafting. John Bebout, National Municipal League,
New York, worked on the committee on local government article.
Emil J. Sady, Brookings Institution, worked with the secretary
of the Alaska Constitutional Convention on administration and
organization of the records. He characterized the consultants as
a very qualified group.
1:45:20 PM
SENATOR SHOWER referred to some of the counter arguments made by
[Nancy Meade, General Counsel], Alaska Court System, during the
[April 12] hearing on SJR 3. He agreed that the delegates voted
in favor of the constitutional amendment on the Alaska Judicial
Council by a vote of 49-4. Some of the consultants disagreed, as
he stated during the previous hearing, so he will not reiterate
their comments. He said he suspected that the court system would
try to make this about politics. However, [SJR 3] is not about
politics. It would remedy a small foundational flaw in the
structure [of the Alaska Judicial Council], he said. He added
that some states require confirmation of judges and other states
elect judges.
He provided some background for pre-Alaska Constitutional
Convention, that in the early 1900s the burgeoning Alaska
territory saw voting turnout by Alaska Natives on the rise. By
1922, the numbers of Alaska Native population voting were higher
than the non-Native population in the territory. In 1924, the
U.S. Congress conferred citizenship to all non-citizen Indians
born within the territorial limits of the U.S. The Alaska
Territorial Legislature responded by enacting a literacy law
requiring that voters be able to read and write the English
language. It also passed laws limiting the ability of Alaska
Natives to be citizens, participate in the political process, or
enter certain public establishments.
SENATOR SHOWER said that the Constitution of the State of Alaska
also required an English literacy requirement as a qualification
for voting, which was repealed in 1970. Thus, at the time the
Constitution of the State of Alaska was being crafted, Alaska's
indigenous representation was provided solely by one person,
Frank Peratrovich, Klawock. At the time, the Alaska Native
population constituted a significantly higher percentage of the
territory's population, he said.
SENATOR SHOWER said his point is that some groups were
underrepresented with a very small group of experts
participating, but the [indigenous] residents of Alaska were
underrepresented.
CHAIR HUGHES asked whether he would relate that to [SJR 3],
which would require confirmation [of the attorney members] by
the legislature.
SENATOR SHOWER recalled a previous discussion that indicated the
Alaska Constitutional Convention was well represented. However,
the majority of the population was represented by one person. He
offered his belief that this is germane to the discussion. He
wondered what would have happened if the majority of the
delegates had been Alaska Natives. He said it was something to
consider.
CHAIR HUGHES acknowledged one of the sponsor's foundational
points, that power is inherent with the people.
1:49:00 PM
SENATOR MICCICHE remarked that it is easy to get far off topic
during discussions. He asked the sponsor to clarify the reason
the resolution is important and what it solves rather than to
disagree with one of the testifiers.
CHAIR HUGHES acknowledged that some questions arose, so
providing the history is important. She said Ms. Meade, Alaska
Court System, made it clear that [the structure of the selection
process for members of the Alaska Judicial Council] was
intentional and the current question is whether the Alaska
Constitutional Convention [delegates] made a mistake.
1:50:32 PM
SENATOR REINBOLD asked for further clarification on the
resolution. She asked whether the resolution would require
members of the Alaska Judicial Council be confirmed by the
legislature.
SENATOR SHOWER reviewed the composition of the Alaska Judicial
Council and the judicial selection process and responded that
the [short] answer is yes.
1:51:44 PM
SENATOR SHOWER reiterated his intent for SJR 3 is to provide a
"tweak" to the constitutional provisions. He expressed concern
that the testimony given [during a previous hearing on SJR 3]
misstated his goal [with SJR 3] was to select conservative
judges, which he thought "politicized" the discussion. He wanted
the record to reflect that the [Alaska Court System's]
contention is [SJR 3] is about politics. However, he contended
that [his goal] is to correct a small flaw in the constitutional
premise. The Alaska Constitutional Convention set up a system in
which three attorneys and the chief justice of the Alaska
Supreme Court can pick every single judge in Alaska because
those names are sent to the governor to be nominated. He
characterized it as an oligarchy. The court system is one-third
of Alaska government, he said. He offered his belief that the
people have been removed from that process and the system does
not provide a mechanism for votes to be overridden. "If the
seventh tie breaker was not a lawyer or the chief justice,
perhaps there would not be any bias," he said. Only lawyers can
choose from their own pool, comprised of 0.6 of the population,
who will sit on the bench.
He clarified that judges are appointed and not elected. He
acknowledged that after an election cycle, judges are retained.
He said that he has pages of notes that refute the arguments and
points made at the last hearing, but he would not spend any more
time on it. He concluded that SJR 3 would change the system of
selecting judges in Alaska. One argument that was somewhat made
at the last hearing is that legislators cannot divorce
themselves from politics and be objectives [during the
confirmation process], but somehow judges are objective. He said
that everyone is human and influenced by their biases or else
none of us are. It does not only apply to one branch of
government, that it is a two-way street.
1:56:12 PM
CHAIR HUGHES said that it is a two-way street. She would say
[SJR 3] is not about politics but it is about accountability. At
this point accountability is not a factor until judges are up
for retention and [SJR 3] would change it so it applies on "day
one." She thought one interesting point made at the last meeting
is that attorneys are also constituents. She pointed out that
her dad was an attorney and two of her siblings are attorneys.
Although she loves attorneys, they are not a class above other
people. The legislature does not allow other boards and
commissions to appoint their own members and she did not think
the [Alaska Judicial Council] should do so either.
1:57:25 PM
SENATOR REINBOLD pointed out that SJR 3 only changes 15 words.
She said that she would prefer to have judges elected because
they need to be vetted. She offered her belief that there is
substantial political activism from the judicial branch. She
said she supports SJR 3.
SENATOR SHOWER pointed out that lawyers would still select from
lawyers and that would not change. He said that this would add
one last cross check from the voice of the people over the
members of the [Alaska Judicial Council]. It does not pertain to
who is selected to be a judge. He characterized it as a
miniscule step in the process.
1:59:02 PM
SENATOR MICCICHE related his understanding of the mechanics. He
said that three [attorney] names would be forwarded to the
governor, to be confirmed by the legislature [to serve on the
Alaska Judicial Council]. If the legislature failed to confirm
the appointees, the process would start again. He asked for
further clarification on any contingency in place for the Alaska
Judicial Council to operate if it does not have an adequate
number of members.
MR. OGAN said that could be done by statute, although the
resolution is silent. He said it could imply that someone else
could be appointed and wait for the next confirmation hearing.
SENATOR SHOWER said that he has been trying to stay at the
highest level by looking at the foundational change and refrain
from looking at statutes, regulations, and policies at this
point.
2:00:57 PM
CHAIR HUGHES opened public testimony on SJR 3.
2:01:54 PM
ELEANOR ANDREWS, President & CEO, Andrews Group, Anchorage,
stated her opposition to SJR 3. She said that she previously
served on the Alaska Judicial Council as the lay person. She
also previously served as the commissioner of the Department of
Administration and on the boards for the Chamber of Commerce,
Commonwealth North, and every Anchorage civic organization. She
said that as the lay person on the Alaska Judicial Council, she
had the opportunity to argue with and negotiate with lawyers.
She did not believe the attorney members overpower the non-
attorney members. She said that Governors Murkowski and Knowles
did not pick candidates from the three members selected by the
council. She said groups of legislators threatened members
because someone did not get appointed. She said she has been
threatened during the confirmation process that she would not be
confirmed. She said that the current system provides for
justice, which is what she really cares about. In closing, she
said the system works and is a model system.
2:04:04 PM
DAVID LANDRY, representing himself, Anchorage, stated that he is
a construction contractor in Anchorage and opposes SJR 3. He
recalled that Senator Micciche hit on two things, and the use of
lawyers in the selection process is a wise use of expertise. He
said that limiting that in any way would be a rookie business
move and is not how businesses work. He said that lawyers
provide invaluable expertise. He offered his belief that the
confirmation hearing process would be a political litmus test.
2:05:21 PM
ERIC MCCAULUM, representing himself, Anchorage, stated that he
works for a North Slope supplier and he has worked in
construction and fishing for the last 35 years. He said he is
also the main investor in a company, Triverus [Cleaning &
Environmental Solutions], who was just awarded a multi-million-
dollar contract to supply the aircraft cleaning deck equipment
to the U.S. Navy. He said that the Alaska Judicial Council
process has worked for over 40 years. The chief justice of the
Alaska Supreme Court has been the tiebreaker in less than one
percent of the cases. Alaska had the advantage of reviewing
other states' constitutions and learning from their mistakes.
CHAIR HUGHES stated that the public can submit testimony to
[email protected].
2:07:05 PM
JOE MILLER, representing himself, Fairbanks, spoke in support of
SJR 3. He said he has served as a federal and state magistrate,
an acting district court judge, and a lawyer. He has applied to
be a judge. He said that his wife sat on the Alaska Judicial
Council. He said that lawyers are viewed fairly negatively, and
it is a biased demographic. He said that lawyers constitute a
very small percentage of the population that controls the
outcome of judicial selections. He said beyond the 4-3 vote, it
also extends to the Alaska Judicial Council's staff selection,
and reports generated by the council that constitute an
influential part of the process. He said the judiciary branch is
the branch that the founders feared most. He said that the
legislature needs to take the time to make this change.
2:08:10 PM
CAROL CARMAN, representing herself, Palmer, testified in support
of SJR 3. She agreed with the sponsor that more oversight is
needed. She also echoed Mr. Miller's testimony regarding bias
and politics. She preferred that judges be elected, she said.
2:08:49 PM
WES KELLER, representing himself, Wasilla, testified in support
of SJR 3. He said that this could be the most critical issue on
the docket in the legislature. It is about asserting legislative
powers. He said that SJR 3 will address a potentially fatal flaw
in the Constitution of the State of Alaska. There is an
imbalance of power, he said. He said that SJR 3 will tweak the
constitutional flaw and give the legislature the right to say
no.
2:11:07 PM
JOHN BIOFF, General Counsel, Kawerak, Inc., Nome, said that
Kawerak, Inc. is a regional Native non-profit consortium in the
Bering Strait region and is comprised of 20 federally recognized
tribal governments. The consortium submitted a letter in
opposition to SJR 3 signed by Frank Katchatag, Chair, who served
as the Board of Directors for Kawerak, Inc. The board, comprised
of people, not lawyers, opposes this to ensure that politics
does not enter into the process [of selecting members to serve
on the Alaska Judicial Council]. The committee held discussions
that indicated this is not about politics, but it truly is, he
said. The current process allows subject matter experts, who are
attorneys, to have a say, side-by-side with citizens. The
process is not broken and does not need to be fixed.
2:12:21 PM
LYNETTE CLARK, representing herself, Fox, spoke in support of
SJR 3. She offered her belief that judicial activism present in
the Lower 48 has filtered its way into Alaska's courts. She said
she is one of the people covered by Article I, Section I and II
of the Constitution of the State of Alaska and she would like
her voice honored. She sees this as a way to be better
represented by the legislature.
2:13:42 PM
LARRY BARSUKOFF, Director of Operations, Alaska Policy Forum,
Anchorage, said that he supports legislative confirmation of all
members of the [Alaska] Judicial Council. He considers himself
an informed voter but fully researching the ten or so judges
during a retention vote is not a high priority, so he relies on
the Alaska Judicial Council to do so. He surmised that the
average voter also trusts the judgment of the Alaska Judicial
Council.
He offered his belief that industry insiders have a natural
advantage over members of the public since they are the experts,
and the public tends to rely on industry members. He mentioned
this to show the power of the individual members [of the Alaska
Judicial Council], especially those selected by the Alaska Bar
Association. He said that the founders of the U.S. worked hard
to dilute authority in the same way the authors of the
Constitution of the State of Alaska sought to ensure sovereign
authority remained with the citizens of Alaska.
2:15:27 PM
WALTER (BUD) CARPENETI, Board Vice President, Justice, Not
Politics Alaska, Juneau, spoke in opposition to SJR 3. He said
the sponsor stated that three attorneys and the chief justice
can determine on their own all of the judges, which he took to
mean was the basic statement of the problem. This system has
worked very well for 60 years, so what problem needs to be
fixed, he asked. Former Representative Wes Keller stated that
that there is a potential fatal flaw in the system, he said.
However, every chief justice has been confirmed by a majority of
the statewide voters. He provided factual history to refute that
three attorneys and the chief justice have taken over the power
[on the Alaska Judicial Council]. Since 1984, the [Alaska
Judicial] Council has voted on 1,389 judicial candidates. More
than 80 percent of those votes have been 5-1 or 6-0 because the
council members work well together, he said.
Second, 75, or five percent, of the votes resulted in 3-3 tie
votes. However, 19 of the 75 tie votes had all of the attorneys
on one side and all the non-attorneys on the other side, he
said. In those instances, 75 percent of the time the chief
justice voted to forward the names to the governor. The system
does not seem to be a system that has problems, he said.
MR. CARPENETI agreed that all power resides in the people. He
said that this means that the Constitution of the State of
Alaska can be changed, which is what the committee is currently
debating. He disagreed with follow-up statements that the branch
that is supposed to balance the other branches has no check
itself. "That's just not right," he said. The legislature can
and often does overturn statutory decisions. It has the power of
the purse. The governor has the veto power. The Alaska Bar
Association itself is created by the legislature. The Board of
Governors of the Alaska Bar is comprised of three public
members. The legislature and the governor have a lot of power
over the [Alaska] court system, he said. It is not accurate to
say there is no balance. The question is whether the current
balance should be upset, and he responded that his
recommendation is that it should not.
2:18:44 PM
CHAIR HUGHES, after first determining no one wished to testify,
closed public testimony on SJR 3.
[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 - 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 - League of Women Voters of Alaska.pdf |
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 |
| SJR 3 Opposition - Vic Fischer.pdf |
SJUD 4/15/2019 1:30:00 PM |
SJR 3 |
| SJR 3 - League of Women Voters Opposition Position Statement.pdf |
SJUD 4/15/2019 1:30:00 PM |
SJR 3 |
| SJR 3 Opposistion - Kawerak 4-12-19.pdf |
SJUD 4/15/2019 1:30:00 PM |
SJR 3 |
| SJR4 Version U.pdf |
SJUD 4/1/2019 1:30:00 PM SJUD 4/3/2019 1:30:00 PM SJUD 4/3/2019 6:00:00 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 4 |
| SJR 4 Transmittal Letter.pdf |
SJUD 4/15/2019 1:30:00 PM SJUD 4/22/2019 6:00:00 PM SSTA 3/26/2019 1:30:00 PM SSTA 3/27/2019 6:00:00 PM SSTA 3/28/2019 3:30:00 PM |
SJR 4 |
| SJR4 Sectional Analysis Version U.pdf |
SJUD 4/1/2019 1:30:00 PM SJUD 4/3/2019 1:30:00 PM SJUD 4/3/2019 6:00:00 PM SJUD 4/15/2019 1:30:00 PM SJUD 4/17/2019 6:00:00 PM |
SJR 4 |
| SJR 4 Fiscal Note GOV-DOE.pdf |
SJUD 4/15/2019 1:30:00 PM SSTA 3/27/2019 6:00:00 PM SSTA 3/28/2019 3:30:00 PM |
SJR 4 |
| SJR 4 Fiscal Note GOV-DOE.pdf |
SJUD 4/15/2019 1:30:00 PM SSTA 3/26/2019 1:30:00 PM |
SJR 4 |
| SJR 4 Fiscal Note - DLWD.pdf |
SJUD 4/15/2019 1:30:00 PM SSTA 3/26/2019 1:30:00 PM |
SJR 4 |
| SJR 4 - Legislative Legal Memo.pdf |
SJUD 4/15/2019 1:30:00 PM |
SJR 4 |
| CSSJR 5 Version U.PDF |
SJUD 4/8/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 5 |
| SJR 5 - CSSJR 5(STA) ver U Sectional 4.8.19.pdf |
SJUD 4/8/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 5 |
| SJR 5 - CSSJR 5(STA) - Comparison 4.8.19.pdf |
SJUD 4/8/2019 1:30:00 PM SJUD 4/15/2019 1:30:00 PM |
SJR 5 |
| Senate State Affairs - SJR 5 Written Testimony uploaded (04-08-19).pdf |
SJUD 4/15/2019 1:30:00 PM SSTA 4/4/2019 1:30:00 PM |
SJR 5 |
| SJR 3 - Alaska Judicial Council vote tally stats by year.pdf |
SJUD 4/15/2019 1:30:00 PM |
SJR 3 |
| SJR 5 - Amendment 2 Adopted.pdf |
SJUD 4/15/2019 1:30:00 PM |
SJR 5 |
| SJR 5 - Amendment 3 Adopted.pdf |
SJUD 4/15/2019 1:30:00 PM |
SJR 5 |
| SJR 5 - Amendment 5 Adopted.pdf |
SJUD 4/15/2019 1:30:00 PM |
SJR 5 |
| Statutory $3000 PFD White Paper PFD Working Group 6-27-19 Final.pdf |
SJUD 4/15/2019 1:30:00 PM |