Legislature(2013 - 2014)SENATE FINANCE 532
03/03/2014 05:00 PM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SJR21 | |
| SB127 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SJR 21 | TELECONFERENCED | |
| + | SB 127 | TELECONFERENCED | |
| + | SB 169 | TELECONFERENCED | |
| + | TELECONFERENCED |
SENATE JOINT RESOLUTION NO. 21
Proposing amendments to the Constitution of the State
of Alaska to increase the number of members on the
Alaska Judicial Council and relating to the initial
terms of new members appointed to the Alaska Judicial
Council.
5:06:39 PM
HEATHER SHADDUCK, STAFF, SENATOR PETE KELLY, introduced the
bill. She explained that the bill placed the constitutional
amendment to the state voters if passed. She stated the
goal of adding more public members to the Alaska Judicial
Council. She pointed out that the Alaska Constitution
stated that three attorney members would be appointed by
the bar association to the Alaska Judicial Council along
with three non-attorney members. The members were appointed
by the governor and confirmed by the legislature. She
mentioned article 4, section 8 which stated that members
"shall be appointed for 6 year terms by the governor
subject to confirmation and vacancies shall be filled for
the unexpired term in a like manner and appointments shall
be made with due consideration to area representation and
without regard to a political affiliation."
Ms. Shadduck informed the committee that Senator Kelly
wished to see more public members on the Alaska Judicial
Council because the goal of area representation had not yet
been reached. The historical makeup of the Alaska Judicial
Council included attorneys from four locations: 14 from
Fairbanks, 12 from Anchorage, 10 from Juneau and 3 from
Ketchikan. The public members originated from the same four
cities. Senator Kelly hoped to reach regional diversity
across the state. Additionally, current practice allowed a
tie to be broken by the Alaska Supreme Court justice. She
noted that Senator Kelly viewed the practice as a conflict
of interest. She pointed out the last two years from June
22, 2012 through October 10, 2013, when the last five
attorney/non-attorney vote splits occurred. All three
public members voted to send a name on to the governor, but
the Chief Justice sided with the attorney members to avoid
sending the name. Two of the votes were for the Supreme
Court.
5:10:09 PM
Ms. Shadduck explained that the CS allowed three additional
public members to serve on the Alaska Judicial Council as a
compromise adopted by the Senate Judiciary Committee. She
stated that the odd number of members would help to prevent
soliciting an opinion from the Chief Justice in the event
of a tie.
Co-Chair Meyer opined that he was sensitive to the notion
of conflict of interest as presented in Ms. Shadduck's
testimony. He disagreed that the Chief Justice had a
conflict of interest. He agreed with the need for
additional public input in the process. He wondered about
utilizing 4 public members and 3 attorney members to limit
the amount of members and save the state money for travel
expenses.
Ms. Shadduck replied that the constitution demanded area
representation for the appointments. With only three public
members, proper representation of Alaska's regions was
impossible.
Senator Hoffman opined that more members would be optimal.
Co-Chair Meyer asked about more members from Bethel.
Senator Hoffman replied that Bethel had not yet contributed
a member to the Alaska Judicial Council.
Ms. Shadduck agreed and commented that the idea of
representation by judicial district had been explored,
since Fairbanks was in the fourth judicial district with
Bethel.
5:12:39 PM
Co-Chair Meyer asked how often the Chief Justice had to
vote.
Ms. Shadduck replied that the Chief Justice voted 68 times;
15 times when attorneys and non-attorneys split their vote.
Vice-Chair Fairclough believed that an increased frequency
in participation of the Chief Justice was noted in the
recent past; leading to the interpretation of a problem of
frequency.
Ms. Shadduck concurred. She noted that the last five
attorney and non-attorney splits resulted in a vote for an
attorney by the Chief Justice.
5:13:44 PM
Senator Dunleavy asked about the fiscal note.
Ms. Shadduck replied that the updated fiscal note reflected
a cost of approximately $1500 or $12 thousand. The
estimates were reduced from the original request of $32
thousand.
Co-Chair Meyer pointed out the updated fiscal note. He
stated that the expansion would increase the travel costs.
He OPENED public testimony. He stressed that a
constitutional amendment weighed heavily in importance.
5:15:29 PM
NANCY MEADE, GENERAL COUNCIL, ALASKA COURT SYSTEM, stated
that the Alaska Court System rarely defined a position on
proposed legislation. A bill would be opposed only if it
impacted a core aspect of the judicial branch. The Court
System opposed SJR 21 for that reason. The court only
opposed a bill at the express direction of the Supreme
Court. She pointed out that the judicial branch was
comprised of three entities: the court system, the Alaska
Judicial Council and the Commission on Judicial Conduct.
She stated that the court system was used interchangeably
with the judicial branch because the other two entities
were relatively small. The court system was separate from
the council, yet depended on the work of the council in
screening applicants for judicial positions and making
recommendations in judicial retention. The court system
required qualified judges for the maintenance of the
public's trust and confidence. She testified against the
resolution because the court system relied on the council's
work.
5:17:44 PM
Ms. Meade noted that the resolution had the potential to
change the judicial screening process significantly despite
its 50 years of proven effectiveness. The current council
would select the most qualified applicants based on their
merit. Merit selection of judges was considered the gold
standard across the country. The judges were chosen as the
best professionals in their field.
Ms. Meade addressed points made by Senator Kelly's staff.
The council's diversity issue was supported by the court
system. If a proposal demanded or required additional area
representation or diversity among council members, the
court system would not oppose the change. The court system
attempted to attract diverse applicants to the bench with
methods such as outreach and education.
Ms. Meade stated her problem with the proposed balance of
the council. The court system believed that the current
makeup of the council chosen by the constitutional founders
with three attorneys and three public members worked well
by allowing for the balance of differing views. The balance
assured that no one group had a greater voice. The
attorneys likely had a greater understanding of the skills
required to be a judge. The lay members had valuable views
related to communication and character of applicants. She
stated that both types of opinions were valuable during a
screening process. She stressed that the balance between
attorney and non-attorney members was crucial. A consensus
would be better obtained with a balance.
5:20:50 PM
Ms. Meade believed that the bill could lead to selection on
basis other than pure merit. She stated that the Alaska
Court System opined that the bench was strong with lawyers
that were the best in their field. She argued that the
balance forced the council to act on a consensus basis and
listen to the views of the other group. The bench was
viewed as strong with lawyers that were deemed the best in
their field.
5:24:03 PM
Ms. Meade offered to answer questions. She mentioned over
1100 votes with splits 68 times. Only 15 of the splits were
divided evenly among attorney and non-attorney members. She
agreed that 5 out of 200 votes occurred in a row over the
last several years where the attorneys and public members
were split and the Chief Justice voted with the attorneys.
She stated that the numbers in comparison were very small.
Out of the four votes, two were for the same applicant who
applied twice. She argued that the votes could not be
considered a trend or sign of council dysfunction. She
noted that unanimous voting occurred 80 percent of the
time.
Co-Chair Meyer understood the concern that the public
members may not have to listen to the attorneys. He stated
that the Chief Justice was also an attorney.
Ms. Meade replied that while differing views existed, the
vast majority of the times, votes were unanimous. She
believed that the data proved that public member's voices
were indeed heard.
5:25:51 PM
Vice-Chair Fairclough asked if the Supreme Court requested
that the Alaska Court System oppose the bill.
Ms. Meade replied yes.
Vice-chair Fairclough asked if the Supreme Court decision
was divided or unanimous.
Ms. Meade replied unanimous.
Senator Hoffman asked about the potential for a system in
which neither party was disenfranchised. He wondered about
the process of the Chief Justice making the final selection
in the event of a tie. He stated that without that
practice, the lay members and attorneys would have equal
opportunity for candidate selection.
Ms. Meade agreed with the Senator. She stated that the
balance could be maintained with the Senator's suggestion.
5:27:37 PM
SUSANNE DIPIETRO, EXECUTIVE DIRECTOR, ALASKA ALASKA
JUDICIAL COUNCIL testified about the council's merit
selection and retention system. The council served two
functions. The council members screened applicants for
judicial nominations and sent them on to the governor for
his appointment. The council also evaluated sitting judges
and provided information to the voters about the judge's
performance for retention evaluations. The founders created
the methods of selection and retention of judges. Two
methods of selection were established: election and
gubernatorial appointment. The merit selection procedure
allowed involvement from all branches; the Alaska Judicial
Council screened on merit and sent names on to the governor
who then appointed the selected candidate. The election
occurred later when the judge stood for retention. The
concern about public involvement was addressed in light of
the fact that the voters were directly involved in the
retention of the judges.
Ms. DiPietro mentioned public involvement as related to
diversity on the Alaska Judicial Council. The Alaska
Judicial Council was among 38 states employing the same
type of merit selection for judges. She mentioned the
practices of press releases and comment solicitation from
members of the public. The council published the names of
applicants, which was not done by the majority of selection
committees. When bar survey evaluations arrived, the
council made them public. Many of the practices were unique
to the Alaskan selection agency. Alaska Judicial Council
members traveled to the vacancies when the time came to
interview applicants. She stated that multiple interviews
occurred in Bethel in tandem with a public hearing prior to
the vote or interview. The purpose was to solicit
information directly from townspeople to gather data
regarding community preferences.
5:31:59 PM
Ms. DiPietro discussed the deliberation process with the
council. She noted that the process was not public, but the
vote was. The interviews could occur in public if the
applicants wished. She mentioned the upcoming Anchorage
Superior Court vacancy where three of the six applicants
wished to have public interviews. She conveyed the
collegial nature of the interview and deliberation
processes; each council member was called upon to ask the
questions of the candidate and provide reviews of the
merits of each candidate.
5:34:57 PM
Ms. DiPietro discussed the chart: "Alaska Judiciary
Council, Judicial Nomination over time" (copy on file). She
emphasized that the council members had a high rate of
agreement with applicant selection. She noted that 62
percent of votes were unanimous. Another 19 percent of the
time, only one person had a different vote from the
majority. She explained that attorney/non-attorney vote
splits leading to a vote from the Chief Justice were rare
with 68 votes out of 1100, which she deemed as a very high
rate of agreement. She added that the Chief Justice
traditionally voted to send additional names to the
governor (73 percent of the time).
Ms. DiPietro pointed out that the council often presented
more than the minimum of two names for the governor (62
percent). She mentioned that the selections in Bethel were
often for minimal applicants; oftentimes only two. She
highlighted the importance of the data in the chart. The
trends were made obvious. Less than 6 percent of the total
votes were shown to be attorney/non-attorney splits over
the last two years. She noted that the council was busier
in the last two years than at any other time in its
history.
5:36:55 PM
Ms. Dipietro discussed the attorney versus non-attorney
members. She pointed out the merit selection system in
other states. She informed the committee that the majority
of states (18) had even splits of attorney/non-attorney
members. She mentioned five states with more attorney
members, but four of the five had the additional
requirement that no more than half of either group may be
of the same political party. Alaska's system was without
regard to political affiliation. The other states created
balance by prohibiting a majority of people in one
political party.
Ms. Dipietro quoted the founders from the Constitutional
Convention, "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 noted that the select group was the Alaska
Bar Association, which was created by the legislature by
statute. Another quote, "the intent of the Missouri Plan
was in substance to give a predominance of the vote to
professional men who knew 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 careers the best are the men engaged in the
same type of occupation." Lastly she quoted, "the theory on
the lay members on the confirmation, they represent the
public and they represent the predominant political
thought, the theory on the lawyer members of the council,
they represent the profession, they represent a desire to
have the best judges on the benches."
Co-Chair Meyer appreciated the data in the charts.
5:39:30 PM
MR. WALTER CARPENETI, SELF, JUNEAU, gave a brief personal
history. He testified as a former judge that there was not
a demonstrated need for a change in the constitution, which
had served the state well for 55 years. He believed that
the system balanced the competing interests in judicial
selection and he saw a number of problems with the proposed
legislation. He mentioned a letter to the Senate Judicial
Committee (copy on file) related to the problems with the
proposal.
Mr. Carpeneti discussed the state's constitution and its
wide administration. He served as Chief Justice for three
years and attended multiple national conferences. He
reported that Alaska's method of judicial selection was
widely lauded by judges around the country. The
constitution was amended infrequently and only done so with
great need. He did not see a need to amend the
constitution. He appreciated the presentation from Ms.
Shadduck stating two reasons to change the constitution.
The first was to increase geographic representation and the
second was the perceived conflict position of the Chief
Justice when called upon to vote.
Mr. Carpeneti acknowledged that the governor made
appointments with due regard for geographic representation.
He suggested that a problem may exist in the method in
which the appointments were executed versus an issue in the
constitution itself. He did not see how the proposed
legislation would alter the existing process. He argued
that the legislation failed to address the issue of
geographic representation.
Mr. Carpeneti discussed the argument that the Chief
Justice's vote constituted a conflict of interest. He broke
ties rarely during his time as Chief Justice, but he never
felt a conflict position. He mentioned one occasion where
he cast a vote where the applicant was a Superior Court
judge. He could not see an opportunity for a conflict of
interest. He stressed that the conflict was not attorney
versus non-attorney. He noted over 1100 votes over the last
30 years where 1 percent of the time a split vote was
broken by the Chief Justice. He urged the committee to
refrain from amending the constitution for a recent history
comprised of very few votes.
5:46:34 PM
Mr. Carpeneti discussed the need to send the best candidate
to the governor. He cautioned the committee about amending
the constitution that produced a judiciary that was the
envy of other states. The Alaska judiciary was not the
subject of scandal, corruption, kick-backs or other
problems seen in more politically selected judiciaries. The
focus of the bill was narrow, and he worried that the
proposed changes would not benefit the state.
Mr. Carpeneti stated that he served as a council member in
the early 1980s. He concluded then, that Alaska had a two-
step process with a merit/political plan. He used the term
political as it related to policy and its proper
formulation. He stated that the merit portion included the
Alaska Judicial Council who polled every lawyer in the
state including judges that the applicants appeared in
front of and lawyers on the other side of specific cases.
The council requested a writing sample, credit reports and
criminal records. Candidates were rated on competence,
intellect, temperament, integrity and fairness. At least
two names must be submitted by the council.
Mr. Carpeneti noted that the governor was elected by the
people and would account for the candidate's general
philosophy and their approach to problems. He worried about
an unbalanced proposal as it ran the risk of losing the
merit aspect of the process. He opined that Article IV of
the constitution served the state well over the years. He
urged caution in changing the system.
5:51:10 PM
Vice-Chair Fairclough recalled that eight states had a
system similar to Alaska's. She asked to know more about
the predominate systems.
Mr. Carpeneti replied that he was poorly informed about the
process in other states. He noted that approximately half
of the states with merit-based election systems had
commissions that were evenly split between attorneys and
non-attorneys. He stated that he had not felt compelled to
research other state's systems because Alaska's worked so
well.
Vice-Chair Fairclough corrected that 38 states had similar
systems to Alaska's.
Co-Chair Meyer limited public testimony to two to three
minutes.
5:52:51 PM
ALISON ARIANS, SELF, ANCHORAGE (via teleconference)
testified as a small-business owner against SJR 21. She
stated that she appreciated efficiency, limited bureaucracy
and expert advice. She agreed with the process of the
Alaska Judicial Council and opined that adding members
would increase the travel budgets. She stated that she was
comfortable with attorneys evaluating their peers. She
respected the opinion of the Chief Justice if needed for a
vote. She stated that the citizen members of the group
deserved credit for their ability to make good decisions.
She cited that only 15 out of 1100 votes resulted in the
Chief Justice siding with the attorney group against the
public members. She spoke about her volunteer work as a
guardian ad litem for children. She wanted to feel sure
that she would vote for well-qualified judges.
5:54:52 PM
DANIEL CHEYETTEE, SEALASKA FEDERATION OF NATIVES, ANCHORAGE
(via teleconference), testified in opposition to the
legislation. He echoed reasons for the opposition from
prior testifiers. While his group would like to see more
Alaska natives on the bench as members of the judiciary,
the solution would be to encourage native Alaskans to
attend law school and become judges. The Alaska Federation
of Natives (AFN) believed that the current Alaska Judicial
Council system worked well. He mentioned the state court
system with multiple talented and respected judges. He
disagreed with the effort to change the system. He worked
as an attorney and noted the incredible time commitment
offered by members of the Alaska Judicial Council. He
feared that an increase in the size of the council would
require too great a commitment from the members. He
suggested that the proposed expansion might lead to a
system with less responsibility.
5:58:43 PM
DAVID LANDRY, SELF, ANCHORAGE (via teleconference)
testified against SJR 21. He explained that he worked as a
small-business general contractor. He stated opposition to
the resolution because of the devaluing of professional
opinion exhibited in the bill. He assumed that each case
presented before a judge had an attorney with an opposing
side of an issue or lawsuit. He believed that the attorneys
operated as business people without monolithic political
views. He mentioned his own practice of seeking advice from
other contractors about his peers for the most valuable
business partners. He stressed the importance of the Bar
Association in the selection of judges. He argued that the
resolution was a solution in search of a problem.
6:01:44 PM
GEORGE PIERCE, SELF, KASILOF (via teleconference) testified
in opposition to the legislation. He opposed the resolution
because the current system worked so well. He commented on
the data presented and noted that 15 instances of a Chief
Justice voting in favor of attorneys did not mandate a
constitutional change. He stated that the bill would allow
the governor to have control of the Alaska Judicial
Council, which would provide the opportunity for political
seeding. He noted the lack of evidence for the need to
change the system. He stressed the lack of evidence of
discrimination in the votes. He found it concerning that
the judges would be selected by the governor versus by the
people. He argued against the need to amend the
constitution.
6:04:12 PM
Co-Chair Meyer CLOSED public testimony. He asked how long
the members were appointed.
Ms. Shadduck replied that members were appointed for six
years with staggered terms.
Co-Chair Meyer discussed the concern that a conservative
governor could appoint conservative members and vice versa.
Ms. Shadduck replied that the terms would be staggered when
additional members were added via the resolution.
Vice-Chair Fairclough asked if the bill would change the
vote of the people for judicial retention.
Ms. Shadduck replied that the resolution did not address
the judicial retention election process. She pointed out
that the public currently had a voice when judges were
already appointed. The resolution would allow for a greater
public voice in the beginning of the selection process.
SJR 21 was HEARD and HELD in committee for further
consideration.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Historical Roster of AJC members.pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SJR 21 - Judicial Merit Selection Charts.pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SJR 21 - Judicial Selection Map.pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SJR 21 - Kathleen Miller's Letter to Legislature re AJC 2-20-14.pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SJR 21 AJC. BYLAWS.pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SJR 21 ARTICLE.IV.pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SJR 21 Sponsor Statement.pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SB 127 Explanation of Changes.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 127 |
| SB 127 Sponsor Statement.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 127 |
| CSSB 169HSS Sectional Analysis.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 169 |
| SB 169 changes vsn O to Y.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 169 |
| SB 169 Historic vaccine photo.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 169 |
| SB 169 Support all.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 169 |
| SB169 FAQ.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 169 |
| SB169 Sponsor Statement FIN.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 169 |
| SB169 Vaccines In AK short vsn (2).pptx |
SFIN 3/3/2014 5:00:00 PM |
SB 169 |
| SJR 21 - Summary of Changes.pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SJR 21 TESTIMONY OF DAVID JENSEN.pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SB 169 Historic vaccine photo.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 169 |
| SB169CS(HSS)-DHSS-EPI-02-27-14.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 169 |
| SB169CS(HSS)-DHSS-HCMS-02-27-14.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 169 |
| SB169CS(HSS)-DHSS-VAA-02-27-14.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 169 |
| SJR 21 Kreitzer support .docx |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SJR21 AK Judicial Council Members-voting info.- duties.pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SB127-DOA-DMV-02-18-2014.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 127 |
| SJR21 AFN Resolution.pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SJR21 AK Judicial Council Voting Stats..pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SB 169 Support Cmmsn Aging.pdf |
SFIN 3/3/2014 5:00:00 PM |
SB 169 |
| SB169 AK_BIO PhRMA Testimony SB 169 Mar2014 v2.docx |
SFIN 3/3/2014 5:00:00 PM |
SB 169 |
| SJR021CS(JUD)-AJC-2-28-14.pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |
| SJR 21 opposition - Bundy.pdf |
SFIN 3/3/2014 5:00:00 PM |
SJR 21 |