Legislature(2013 - 2014)BELTZ 105 (TSBldg)
02/26/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SJR21 | |
| Confirmation Hearings | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 136 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| = | SJR 21 | ||
SJR 21-CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
1:35:03 PM
CHAIR COGHILL announced the consideration of SJR 21. "Proposing
amendments to the Constitution of the State of Alaska to
increase the number of members on the judicial council and
relating to the initial terms of new members appointed to the
judicial council." [Version N was before the committee.]
1:36:29 PM
WALTER CARPENETI, retired judge and former chief justice
representing himself, thanked the committee for taking so much
time on such an important issue. He said he would make three
points regarding SJR 21: 1) there is no demonstrated need for a
change; 2) the present system balances the competing interests
and extreme care should be taken before changing that; and 3)
the proposal creates problems that are worth considering.
With regard to no demonstrated need, he stressed that the Alaska
Constitution is widely respected. It has been amended just 28
times and a lot of those were technical. He said he looked to
the sponsor statement to find out why the sponsor was proposing
this and he didn't think it was any reason at all to say that a
number of other states do this. He urged the committee to
instead look for positive reasons to make a change.
The second reason stated was that the state is growing. That's
true, he said, but the size of the legislature hasn't increased
and that's not a specific reason that demonstrates a problem
with the present system.
He said the third reason was regional diversity, and he didn't
understand that because the constitution already requires
governors to make appointments with due regard for regional
diversity and the governors do that.
The fourth reason was to reduce the likelihood of tie votes, but
the facts belie the importance of that. First, tie votes happen
infrequently and the instances when all the public members were
on one side and all the lawyers on the other side only occurred
in about one percent of the votes. Furthermore, the chief
justice has sided with the lawyers only slightly more often than
when the chief justice has sided with the public members.
Looking at the big picture, he said it's an unpersuasive case to
say that the system has to be changed when it's worked well for
55 years.
The final reason mentioned in the sponsor statement was to avoid
conflicts of interest. He said he didn't understand that
statement because there isn't any conflict of interest for a
chief justice to break a tie any more than there is a conflict
for a supreme court member to break a tie against a sitting
superior court judge or a sitting court of appeals judge. The
court's business is to review the work of those judges and
sometimes they're affirmed and sometimes they're reversed.
JUSTICE CARPENETI said he didn't see that the reasons in the
sponsor statement amount to a reason to change the constitution.
That being said, what is really missing is a statement that the
system is broken; that too many judges are being indicted for
corruption or taking kickbacks. That isn't happening in Alaska.
He admitted he was biased, but challenged anyone who supports
SJR 21 to give a positive reason as to how the judiciary is
failing.
1:42:45 PM
JUSTICE CARPENETI referenced Mr. Pauley's earlier testimony that
two of the five seats on the current Supreme Court were held by
people who came through a Judicial Council in which there was a
3:3 tie with all the lawyers on one side and all the public
members on the other side and the chief justice voted "no." He
said he looked at the vote he wasn't involved in and found that
12 people applied and four nominees were sent to the governor.
He opined that sending one-third of the applicants was a good
number. He said he was the chief justice who cast a tie breaking
"no" vote in the other instance when just 2 of the 12 applicants
were sent to the governor. He related that it was a difficult
decision because the candidate that's been referenced was a
qualified judge who could have done the job. In fact, that judge
previously applied for a position on the Supreme Court and his
name was sent to the governor.
He said the answer to why that applicant's name would be
forwarded one time and not another is in the constitution. The
convention delegates talked about a Judicial Council that would
be made up of lawyers who knew which lawyers were good and which
were bad and public members who could act as a check and give
the broad every man's view. The Council was charged with sending
the very best or "the tallest timber," and from that perspective
it isn't inconsistent that a particular person can be among the
best if that category is expanded to 7 out of 17, but that
person might not make it when there are 12 applicants and 2
stand head and shoulders above the rest.
He concluded his comments with an expression of hope that the
committee would take into consideration the question of whether
or not the Judicial Council has failed in the past before making
a decision to change a constitution that has served so well.
1:46:29 PM
CHAIR COGHILL opined that the listening public needed to hear
how the system works and that he'd been fairly generous in
creating that record. He thanked Justice Carpeneti.
1:47:24 PM
SENATOR DYSON asked Justice Carpeneti to rebut the argument that
the Bar Association is a collective of values that it
consciously or unconsciously wants to perpetuate. That's the
view of some constituents and what makes the system suboptimal,
he said.
JUSTICE CARPENETI said he wouldn't defend the way all Bar
Association members vote in every poll, but he would say that 99
percent of the cases that come before all the courts have
nothing to do with political issues. Rather, they have to do
with what the legislature meant when it passed legislation, what
the framers meant when they put the principles into the
constitution, and figure out how regulations fit with statutes.
What lawyers want is people on the bench who are going to do
their homework, read the briefs, read the statutes, puzzle it
out, and not come with a prefixed idea, he said.
CHAIR COGHILL interjected that he wanted time to hear from the
executive director of the Judicial Council and the sponsor.
SENATOR DYSON said a very well respected lawyer in this state
who has litigated abortion-related questions has never gotten
through the process and there is great concern among people who
share his perspective of human rights that a warrior who has
taken on those cases will never get through the Judicial
Council.
JUSTICE CARPENETI suggested he look at the whole record in that
case and decide whether or not he wanted an incredibly strong
advocate on the bench who had taken numerous public positions on
issues that come before courts all the time. He relayed that he
was on the Judicial Council both times that person applied and
there was never a tie because the applicant couldn't get even
three votes.
CHAIR COGHILL said his perception was that judges who have taken
strong positions in support of Planned Parenthood have sailed
through the process.
JUSTICE CARPENETI said he could only speak to the times he was
on the Judicial Council.
CHAIR COGHILL mentioned instances in the past, including recent
the testimony from a former judge who impugned some members'
motives, to illustrate what causes him to bristle.
SENATOR MCGUIRE thanked Justice Carpeneti for his service to the
state and apologized that he was coming before the committee
when there was a time constraint. She relayed that when she
commented on the legislation initially she highlighted that his
tie-breaking votes were consistently on the public side, which
she appreciates. She said this bill is important because there
is a perception, especially in the last four years, that there
has been a collective rejection of the public in the selection
process. She described the proposal as a calculated way of
giving the public membership more weight, and questioned what
harm it could do to add more public members.
1:56:21 PM
JUSTICE CARPENETI recalled that when he broke the 3:3 tie in
favor of sending the name to the governor it was because he
thought in each case that the applicant fit in the group of the
best qualified. The one time he couldn't come to that conclusion
he voted "no." Addressing the question of harm, he said he
worries about moving to a system where the knowledge, the
expertise, and the experience of people who have worked day-to-
day with their lawyer colleagues comes to count very little in
the selection of judges. If that happens, there is a risk that
what fills that place is not only people that don't know these
people very well, but people who are looking for judges who are
going to give a particular result.
He offered an anecdote and opined that only in a system like
this where judges don't discuss their political views is it
possible for two justices who worked together for a number of
years not to know the answer when asked if Justice X was still
as conservative as he was 30 years ago. He reiterated his belief
that it's dangerous to move the political part of the selection
earlier into the merit selection.
1:59:51 PM
SENATOR DYSON mentioned the case where a judge interpreted the
privacy clause to give children the right to get abortions
without the knowledge of their parents, and said he couldn't
imagine that kind of view of the law and the constitution. He
said he wouldn't call his view political, but rather a
principled belief in some kind of transcendent truth.
JUSTICE CARPENETI summarized how he voted in that case and
stated that he respected his colleagues who were on the other
side and the process by which they got there. He reiterated his
belief that the state is better off with a process that doesn't
try to find out how a judicial candidate will vote because the
essence of judging is to take the law that's been established by
others and apply it to individual cases.
SENATOR WIELECHOWSKI asked if the Judicial Council ever asks
questions about social issues such as abortion or gay rights
when evaluating judicial candidates.
JUSTICE CAPRENETI answered no.
SENATOR WIELECHOWSKI asked if it would be appropriate for the
Judicial Council to ask that sort of question.
JUSTICE CAPRENETI replied he didn't think it was appropriate for
the Judicial Council to ask and he didn't think it was
appropriate for judges to commit themselves before a case comes
to them. It does a disservice to the litigants.
2:03:45 PM
SENATOR OLSON highlighted that the data he had shows 15 tie
votes in the last 30 years; the chief justice joined with the
attorneys 10 times and with the public members 5 times. What's
even more troubling, he said, is that 4 or 5 times in the last
several years the chief justice has always joined with the
attorneys.
JUSTICE CARPENETI replied he would stand corrected if the number
was 10 to 5 rather than 9 to 6 as he thought. For the more
recent votes he recalled 3 tie votes: 2 times he voted with the
public members to send a name on to the governor and 1 time he
voted not to send the name on. Nevertheless, the greater point
is that it is a very small percentage out of 1,163 votes, he
said.
SENATOR OLSON asked if he would support amending the resolution
to remove the chief justice as a voting member. If there's a tie
vote the name goes on to the governor to decide. He continued to
say that his real problem was that the judiciary has sent an
overrepresentation of Natives to prison. Furthermore, in 55
years only one Native has served on the bench, only one public
member of the Judicial Council has been a rural Native, and none
of the attorney members come from a rural area.
JUSTICE CARPENETI replied there won't be Native judges until
there are Native lawyers and there won't be Native lawyers until
more Natives go to law school. He said the Court System has been
working to get out of state law schools to set up programs in
Alaska that would draw people in from the rural areas, and the
Seattle Law School is now doing that.
SENATOR OLSON reviewed the pictures of currently serving judges
and commented that one problem is that there's no minority
sector representation. Not one is an Alaska Native.
JUSTICE CARPENETI responded that it's not for lack of trying by
the Court System and Judicial Council.
CHAIR COGHILL said that shows the multifaceted element of this
question. He observed that it's been represented that lawyers
have a better view of the judicial system in Alaska, but he
believes that the public members deserve more credit than
they've been getting. He continued to say that this committee's
interest is whether the system is working "with the kind of
input that we would like to see from Alaska."
2:10:23 PM
SENATOR WIELECHOWSKI asked the executive director to discuss
judicial candidate rejections. He offered his understanding of
the October 2013 opening for the Fairbanks District Court in
which three members were nominated. There was a tie and the
chief justice voted against sending that applicant's name on to
the governor. He said he also understands that that applicant
had a lower ABA survey score than the applicants whose names
were sent on to the governor. He asked if that was accurate.
SUSANNE DIPIETRO, Executive Director, Alaska Judicial Council,
affirmed that was accurate. She reiterated her previous
testimony that a number of performance measures are considered,
but the Bar survey scores are correlated with a higher
likelihood of nomination and better performance on the bench.
SENATOR WIELECHOWSKI offered his understanding of the December
2012 Alaska Supreme Court opening where two names were not
forwarded and two names were forwarded. He asked if it was fair
to say that the Bar survey scores for the people who were
forwarded were fairly significantly higher than the Bar survey
scores of those that weren't forwarded.
MS. DIPIETRO agreed that was fair to say.
SENATOR WIELECHOWSKI offered his understanding of the August
2012 Anchorage Superior Court opening. Five names were forwarded
to the governor and the person who received a "no" vote from the
Judicial Council had a "below acceptable" score. He asked if
that was a fair statement.
MS. DIPIETRO affirmed that the applicant's overall rating was
"below acceptable."
SENATOR WIELECHOWSKI offered his understanding that for the
Alaska Supreme Court opening in June 2012 the same nominee
received a "below acceptable" score but there was not a tie
vote. There was a tie vote on another person who ultimately did
not have their name forwarded; that person's ABA survey scores
were lower than the two people whose names were forwarded. He
asked if that was correct.
MS. DIPIETRO replied that was largely correct.
SENATOR WIELECHOWSKI offered his understanding that for the
Bethel Superior Court opening in August 2012 two names were
forwarded. In one case there was a tie vote and the chief
justice voted in favor of forwarding the name. He asked if that
was accurate.
MS. DIPIETRO answered that was correct.
SENATOR WIELECHOWSKI stated agreement with Senator Olson that he
would enjoy seeing more diversity on the court. He asked Ms.
DiPietro if the Judicial Council has data to indicate there is
an issue with attorney and public members of the Judicial
Council rejecting Native attorneys who apply.
MS. DIPIETRO said that Native attorneys represent a very small
percentage of the Bar, but there is little difference between
the rate at which they apply and the rate at which they're
nominated.
2:14:42 PM
CHAIR COGHILL asked what percentage of Bar Association members
respond to the polls.
MS. DIPIETRO explained that the Judicial Council sends Bar
surveys to the mailing address of all active members of the
Alaska Bar Association. She offered to follow up with the
response rate.
SENATOR OLSON asked if the roughly 2,000 inactive members
receive a survey.
MS. DIPIETRO offered to follow up with the information.
SENATOR WIELECHOWSKI referenced a statement in a previous
hearing about defense attorneys giving prosecutors lower scores.
He asked if it would be ethical and if there were many former
prosecutors who were judges.
MS. DIPIETRO replied it would be unethical to give a false
statement on the Bar survey, and that prosecutors are nominated
at about the same rate at which they apply. She acknowledged
that that statement caused her some concern so she looked and
found there are about 25-30 sitting judicial officers who have
prosecutorial experience.
2:17:35 PM
CHAIR COGHILL invited the sponsor to offer final comments.
2:17:45 PM}
SENATOR PETE KELLY, sponsor of SJR 21, Alaska State Legislature,
Juneau, Alaska, highlighted that the former chief justice
provided an anecdote and admitted he's biased because he's been
in the judiciary for 30 years. The point is that there's a need
to expand beyond that biased community that comprises the
judicial system because it has too much sway in the selection of
a branch of government, he said. He commented on his new
friendship with the current chief justice and stressed that the
discussion isn't about individuals, it's about a system that has
a flaw. It's the job of the legislature to discuss those and
perhaps make changes.
SENATOR KELLY relayed that a topic of discussion this morning in
the Finance Committee was that people with felonies won't
qualify for jobs on the pipeline and that there are a
disproportionate number of felons in rural Alaska. Part of that
discussion was how to ensure that the system isn't stacked
against these people on a project that's partly financed by the
state. He said that was relevant to the current discussion
because it's looking forward to help the people in the state who
are disadvantaged and changing what can be changed. He opined
that the Alaska Constitution appears to have a flaw and
precludes rural participation in the judicial selection process.
Addressing Senator Olson's observation about the number of
Native or rural judges, he agreed with Justice Carpeneti's
analysis. But what can be done right away is to allow rural
people to at least have a say in the process of selecting
judicial candidates, he said.
Addressing the observations about the sponsor statement, he said
sponsor statements don't carry that much weight in the record,
and he stated the intention of the resolution to this committee.
Number one is the need for regional diversification and that the
number of public members is too small to accomplish that. He
suggested that the constitution is in conflict with itself
because it says there shall be three public members and that
appointments shall be made with due consideration to area
representation and without regard to political affiliation. The
founders didn't realize that when the state grew there would be
a significant rural Alaskan voice that wouldn't be heard. The
solution is to expand the membership, he said.
SENATOR KELLY reiterated his belief that voting to break a tie
puts the chief justice in a conflict because the chief justice
is a human being. Because the conflict can't be avoided he is
proposing to make the system fairer by giving the people's
representation more sway than the Bar Association. Noting the
testimony last week that argued against changing the merit
system, he maintained that this constitutional amendment was a
very small change and it wouldn't change the merit system. He
urged the members to keep in mind the people of rural Alaska
when voting.
2:27:02 PM
SENATOR WIELECHOWSKI asked if he would support an amendment to
the resolution to require membership from rural Alaska.
SENATOR KELLY responded that he believes the regional
diversification meets that and he'd be willing to talk about it.
CHAIR COGHILL asked the will of the committee.
SENATOR MCGUIRE discussed her belief that increasing the number
of public members would increase the opportunity for more
diverse representation.
2:29:36 PM
SENATOR MCGUIRE moved to report CS for SJR 21, Version N, from
committee with individual recommendations and attached fiscal
note(s).
2:29:47 PM
SENATOR WIELECHOWSKI objected. He said a review of the
constitutional minutes shows that the delegates clearly intended
to keep politics out of the process, and that's why they
rejected both the election of judges and gubernatorial
appointments. They instead adopted a hybrid that's crafted after
the Missouri Plan. A number of people are appointed by the
governor, a number of people are members of the Bar Association
and the chief justice votes only to break a tie. He cited the
Alaska Redistricting Board to illustrate that this isn't
unusual. It makes sense to have the chief justice vote in the
case of a tie because that is a respected position. The reason
the position is respected is because Alaska's judiciary is
probably the best in the country.
He said that other states have judiciaries that are heavily
politicized and the people who get appointed are either friends
of the governor or they raised money for the governor. That's
not how it's done in Alaska and that's not how it should be done
in Alaska. He said his fear is that by weighting the Council
with people who are appointed by the governor will politicize
the process. The founders rejected that process and instead
selected one that has worked well for 50 plus years and made
Alaska's judiciary the best in the country. The system is not
broken and it doesn't need to be fixed.
SENATOR WIELECHOWSKI said a review of the data shows that the
system isn't broken. In the last 30 some years, 1,136 votes
resulted in an even split between the attorneys and non-
attorneys just 15 times. When something occurs less than 1
percent of the time that is not an indication that the system is
broken, he said. That the chief justice sided with the attorney
members either 9 or 10 times isn't a clear indication of bias.
He said he asked to hear from the Judicial Council today because
of the hyperbole that the chief justice sides with the attorneys
without a rational basis. What the record shows is that there
was a rational basis for every single vote in the last five
years. The data shows that each time the chief justice voted not
to forward the name, the person had scored demonstrably lower
than everyone else in the applicant pool. He said this is a
merit-based system, which means that the people who ultimately
become judges are the best and have the highest scores. The
Judicial Council said that the people who score well tend to get
nominated and tend to do better on their retention scores.
That's what Alaska wants and that's what Alaska is getting.
He said the comment last week that members of the defense bar
reject prosecutors is false according to the testimony today.
First, it would be unethical to give a rating that wasn't
accurate. Second, there are 32 former prosecutors who are
sitting on the bench today.
SENATOR WIELECHOWSKI said he appreciates the concern about
having a fair bench that takes into consideration the concerns
of people in rural Alaska and the concerns of Alaska Natives.
Practically everyone would agree that there should be a more
diverse Bar and a more diverse judiciary, he said, but this
resolution does nothing to increase the ability to elect people
from rural Alaska. That's probably why the Alaska Federation of
Natives unanimously opposes this resolution. He reiterated his
opposition to the resolution stating that it will fundamentally
alter the judiciary in Alaska in a way that won't benefit the
people.
2:37:55 PM
CHAIR COGHILL said that, as chair, he would vote in favor of
moving the bill in the belief that it would give the public a
better opportunity to have their voice heard. The constitution
states that power is inherent in the people and giving the
people the opportunity to have greater input into the selection
of judges is a good thing at this time in history, he said. He
rejected the notion that increasing the public membership would
politicize the process. The fact that Bar Association
appointments are somewhat a mystery and a bit cartel-like is
further reason to support this resolution, he said.
SENATOR OLSON commented that the public has a profound mistrust
of lawyers in general, and it's justified. He expressed support
for amending the resolution to increase the rural representation
in either the attorney or non-attorney sector, and acknowledged
that was unlikely due to time constraints.
CHAIR COGHILL asked for a roll call.
2:47:36 PM
A roll call vote was taken. Senators McGuire, Dyson, and Coghill
voted in favor of moving SJR 21. Senators Wielechowski and Olson
voted against it. Therefore, CSSJR 21(JUD) was reported out of
the Senate Judiciary Standing Committee by a vote of 3:2.
SENATOR WIELECHOWSKI stated that when he checked BASIS he found
that the bill did not have a Finance Committee referral,
although it has a fiscal note.
2:48:41 PM
CHAIR COGHILL announced that CSSJR 21(JUD) moved from the Senate
Judiciary Standing Committee with individual recommendations and
attached fiscal note.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 136.pdf |
SJUD 2/26/2014 1:30:00 PM |
SB 136 |
| SB 136 - Sponsor Statement.pdf |
SJUD 2/26/2014 1:30:00 PM |
SB 136 |
| SB 136 - Legislative Task Force UAS Interim Report.pdf |
SJUD 2/26/2014 1:30:00 PM |
SB 136 |
| SB 136 - IACP UA Guidelines.pdf |
SJUD 2/26/2014 1:30:00 PM |
SB 136 |
| Letter of Support - UAA.pdf |
SJUD 2/26/2014 1:30:00 PM |
SB 136 |
| Letter of Support - FEDC.pdf |
SJUD 2/26/2014 1:30:00 PM |
SB 136 |
| SB136-UA-SYSBRA-2-16-14.pdf |
SJUD 2/26/2014 1:30:00 PM |
SB 136 |
| SB136-DPS-DET-02-16-14.pdf |
SJUD 2/26/2014 1:30:00 PM |
SB 136 |
| SB136-LAW-CRIM-02-14-14.pdf |
SJUD 2/26/2014 1:30:00 PM |
SB 136 |