Legislature(1997 - 1998)
02/20/1998 01:05 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JOINT RESOLUTION NO. 4
Proposing amendments to the Constitution of the State of Alaska
relating to terms of legislators.
- SCHEDULED BUT NOT HEARD
HJR 47 - CONST AM: APPELLATE JUDGES
[Also contains testimony by Victor Fischer on HJR 4.]
Number 0046
CHAIRMAN GREEN announced the committee would hear HJR 47, proposing
amendments to the Constitution of the State of Alaska relating to
the nomination, selection, appointment, and public approval or
rejection of justices of the supreme court and of judges of courts
established by the legislature that have as an exclusive purpose
the exercise of appellate jurisdiction over judicial acts and
proceedings, and requiring legislative confirmation of those
justices and judges and of the appointed members of the judicial
council.
Number 0052
REPRESENTATIVE JOHN COWDERY, sponsor, read from portions of the
sponsor statement. He said HJR 47 provides for the legislative
confirmation of judges appointed to the Alaska Supreme Court and to
the court of appeals, by adding constitutional language referring
to courts of record with appellate jurisdiction that are
established by the legislature, and by requiring that all such
appointments be presented for legislative confirmation. The
resolution also provides for legislative confirmation of all
members of the judicial council, which was created by the
constitution in Article IV, Section 8. Currently it provides that
the three public members appointed by the governor shall be
confirmed by the legislature, but the three attorney members
appointed by the Alaska Bar Association do not have to be
confirmed.
Number 0166
REPRESENTATIVE COWDERY told members the motivation for the
constitutional amendment is to include the public in the process of
appointing judges. The public has less input into the judicial
branch than into the executive and legislative branches, which have
elections and compulsory public input in their decision-making
processes. Even the governor's cabinet appointees are subject to
legislative confirmation, and perhaps 30 or 40 boards require it.
Through legislative confirmation of judges, the public can
participate in confirmation hearings, the judicial candidates can
present their philosophical approach to the law, and the public
will have a voice in their selection.
Number 0241
REPRESENTATIVE COWDERY discussed two popular arguments against
legislative confirmation of judges. First is that legislative
confirmation politicizes the process. Representative Cowdery said
that is true, and it is a positive strength of HJR 47. He
described the legislature as a partisan political party, where
Republican or Democratic labels are a shorthand for political
values with which voters identify. He said legislative screening
is a screening of values, and the public expects the governor, the
legislators and all public officers, including judges, to have a
value system that supports their own. "If politics is the process
by which a potential judge's values are revealed to the public,
then politics is a good thing," he added.
REPRESENTATIVE COWDERY pointed out the existence of politics in the
present process. Noting that the Alaska Bar Association uses
secret ballots, he asked if bar elections and politics are somehow
sacred, while legislative elections and politics are presumed
somehow inferior. He indicated the only difference is that the
legislature admits to its politics, while the bar association does
not. This resolution allows the bar association and the judicial
council to continue their current roles in the judicial system, but
it adds a public element to the process.
Number 0419
REPRESENTATIVE COWDERY told members the second popular argument
against legislative confirmation is that the Alaska Bar Association
is better-qualified than lay people or the legislature to evaluate
judicial nominees; he believes that is false. Although the bar
association may be in the best position to determine the legal
ability of a lawyer, the public has a higher standard for judges
than mere legal ability.
REPRESENTATIVE COWDERY expressed the desire to know the moral fiber
of judicial nominees, saying, "We don't attempt to prescribe it.
We just want to know what he or she believes in. For example, does
he believe in economic principles that support private property
rights, gun control, publicly funded abortions? Would he be soft
on repeat offenders, or would he be a 'hanging judge'? Does he
believe that judges should strictly interpret laws based on
legislative intent, or that they should apply law in the way they
would prefer? There is more to selecting a judge than just his or
her legal ability. The bar association is rightly concerned about
a legal ability. A judge needs that. But the public needs the
whole man measure, and only the legislature can highlight that."
Number 0538
CHAIRMAN GREEN asked whether Representative Cowdery has a synopsis
of what transpired during the Alaska Constitutional Convention
relating to election of judges versus appointing them as is done
currently.
REPRESENTATIVE COWDERY replied, "Yes, we've got to remember that
the constitution was in 1955. In fact, at that time there was few
lawyers in the state. And at that time, even the judicial council,
they talked in the convention of the judicial council possibly
having the same authority for confirmation as the judicial
committee or the legislature." He said the main discussion had
been about electing judges, and he fully agreed it would politicize
the system to elect people based on popularity, public relations
campaigns or how good a selling job they had done.
REPRESENTATIVE COWDERY indicated the constitutional convention had
barely touched on confirmation by the legislature. He reported
that his staff members have read the convention minutes several
times and that he has read them two or three times. In addition,
a constitutional convention member would testify that day.
Representative Cowdery referred to the packet for HJR 47 and said
this process is used in perhaps 11 or 12 states plus four
territories and Washington, D.C. Although many states elect their
judges, he would not favor that. All HJR 47 does is ask the people
to vote.
Number 0730
REPRESENTATIVE JEANNETTE JAMES said her understanding of the issue
in this country relating to the three branches of government is
that the judicial branch is to not be political. She commented
that a person's politics cannot be separated from what they do but
is ingrained. She suggested that might have been a driving factor
to put judges and judicial matters in a different situation.
REPRESENTATIVE JAMES expressed support for the public process, then
pointed out a public process that exists: Judges get a trial
period followed by a vote on whether to retain them. She commented
that since age 21, she has voted "no" on every judge on the ballot,
"only because I think there should be somebody that says no when
you only are given one alternative." She suggested there is more
public dissention regarding judges now, and she asked whether that
is the reason for coming up with this idea. She concluded by
saying on the face of it, she thinks the existing system is fine.
Number 0841
REPRESENTATIVE COWDERY said that isn't the reason he had brought
this up. Currently a judge is up for retention during the election
following three years of service and may make decisions for six
years that perhaps people don't agree with; he sees that retention
election as after the fact. What he is hearing from the public,
and the motivation behind HJR 47, is that the public perceives many
court decisions as being out of sync with the public's wishes.
REPRESENTATIVE COWDERY referred to the previous year's tort reform
bill. He said there were two states where the legislature threw
out the judges - or perhaps it had happened on two occasions - for
frivolous lawsuits and "frivolous decisions on monetary." He said
he doesn't know whether Alaska has an avenue to do something like
that, but confirmation would bring out the character and
philosophies of the candidates.
Number 0977
REPRESENTATIVE JAMES mentioned the judicial confirmation process in
Washington, D.C., and her experience with the confirmation process
in this legislature on various appointments. Restating her belief
that judges are already partisan because people's philosophies
affect all parts of their lives, Representative James asked if
putting judges up for legislative confirmation wouldn't make this
even more partisan, no matter which party is in charge of the
legislative process.
REPRESENTATIVE COWDERY indicated he doesn't think the legislature
is as partisan as a lawyer who will probably be appointed for a
lifetime.
Number 1059
REPRESENTATIVE CON BUNDE mentioned the need for great care in
amending the constitution. He asked what is so broken here that
needs fixing. He further asked, "If we'd had this system in place
10 or 15 years ago, how do you view that the judiciary would have
changed today?"
REPRESENTATIVE COWDERY suggested for a lawyer in private practice,
they might have found out that person's philosophical views by
determining who that lawyer's clients had been. Representative
Cowdery agreed that the constitution is very sacred, and he
believes the general public of Alaska thinks that as well.
However, he would like them to vote on it.
Number 1154
REPRESENTATIVE ERIC CROFT referred to Representative Cowdery's
remark that the judicial branch has less public influence on it
than the others have. He proposed that that is the way it was
designed to be, and is the proper division. He asked what
legislators would do if armed with knowledge of whether a
candidate's clients had been the Sierra Club on the one hand, or
oil companies on the other. Representative Croft asked, "Should we
then, if we're stereotypical Democrats in the legislature and they
have the majority, reject them because they've had oil company
clients? And if a stereotypical Republican, reject them because
they had Sierra Club clients?"
Number 1207
REPRESENTATIVE COWDERY said it was never his intention to imply
that. However, they could ask questions about background and
history to try to determine people's philosophical views about
issues that will probably come before them.
Number 1235
REPRESENTATIVE CROFT noted that they try to pre-select candidates,
so that they are qualified; the governor makes a decision; and the
judge is up for election later. He asked: Now, if they add the
legislature, how could they get more partisan than that? He added,
"I guess with straight elections, but we've now involved every
popular element, haven't we?"
REPRESENTATIVE COWDERY answered that the judges certainly deal with
every element, popular or unpopular. He suggested the legislature
would enhance this process and the state would end up with better
government.
Number 1273
REPRESENTATIVE ETHAN BERKOWITZ said, "I don't know if you're aware,
but in order to get past the judicial council screening, judges are
evaluated on not only legal ability but their temperament, their
fairness, their integrity and the appropriateness of their
experience. And it would seem to me that given the breadth with
which we evaluate judicial candidates, it would be a little hasty
to change the process under the assumption that we were solely
doing it on the criterion of legal ability."
REPRESENTATIVE COWDERY replied that it is part of the process to
evaluate everyone who is confirmed in the legislature on those
values.
Number 1333
REPRESENTATIVE BERKOWITZ pointed out a distinction: This is done
in a formal vetting process, where questionnaires are sent out
across the state to people they know or members of the bar
association. A sheet asks whether a person knows the judicial
candidate and requests an opinion, on a scale of 1 to 5, for
example, of the candidate's legal ability, temperament, fairness,
integrity and appropriateness of experience. This information is
accumulated at the judicial council. If someone has a high enough
grade, then - and only then - is that name forwarded.
REPRESENTATIVE COWDERY asked who receives these questionnaires.
REPRESENTATIVE BERKOWITZ said he believes law enforcement gets
them, in addition to bar association members. As far as he
understands, members of the public may also be permitted some
input; he suggested someone from the judicial council could address
that. He stated, "But to assume that someone is just selected ...
without any public input, I think that's not quite an accurate
representation of how the selection process occurs."
Number 1406
REPRESENTATIVE NORMAN ROKEBERG referred to Section 3, beginning on
page 2, line 30. He asked whether that new language is substantive
in nature or merely linguistic, to be politically correct.
Number 1469
MARCO PIGNALBERI, Legislative Assistant to Representative John
Cowdery, agreed it doesn't read right but indicated his belief that
it is not substantive.
REPRESENTATIVE ROKEBERG suggested the less they jumble up the
ballot if this moves forward, the better, saying this looks like
another "drafter run amok" problem. He asked whether Version E is
the correct version.
CHAIRMAN GREEN said he makes an excellent point, then confirmed it
is the right version.
Number 1503
REPRESENTATIVE ROKEBERG asked whether Representative Cowdery had
provided the Alaska Constitutional Convention minutes before him.
REPRESENTATIVE COWDERY said yes.
REPRESENTATIVE ROKEBERG mentioned the language used and the
Missouri Plan. He referred to page 695 of those minutes and
pointed out the difference between the meaning of "political
correctness" then and now. He said he was particularly drawn to
what former-Congressman Ralph Rivers said on the next-to-last page,
that "the minute you adopt something like this, you are making a
partisanship proposition out of it." He indicated Mr. Coghill had
then said, "Well, this would be nonpartisan, obviously, because the
highest official of our executive branch, the governor, would make
this selection."
REPRESENTATIVE ROKEBERG suggested history has shown in part that
they failed to achieve their objective in terms of the political
construct; our process elicits partisanship in spite of the
judicial council's intercession, because they can send any number
of names up. Representative Rokeberg said he'd like to get the
history from witnesses from the judicial council, but recalled that
historically governors have rejected all the names and told them to
go back to square one and start again.
REPRESENTATIVE COWDERY indicated his staff had just informed him
that the convention minutes hadn't come from their office.
Number 1649
MR. PIGNALBERI offered two other quotations from the constitutional
convention, day 32, during the debate on the judge selection
process. He stated, "Delegate McNealy, who later become president
of the Senate, as you probably know, said that this appointment
method will bring judges into politics more so than an election by
the people. There was concern on all sides that judges remain free
from the vortex of politics. ... Each side saw politics being least
on the side they were for, and worse on the proposal they didn't
favor. Delegate Smith, in the final parts of the debate that day,
summed up by saying ...."
REPRESENTATIVE CROFT asked whether he could reference the page
numbers.
MR. PIGNALBERI said he had a different format. He continued, "For
Delegate Smith simply said, 'I would certainly not defend either
the appointive nor the elective, on the grounds that it would take
judgeship out of politics. I believe the political implication
would be equal in either case.' ... That was the tenor of the
debate. And again, it was ... mostly about election of judges
versus the Missouri Plan. Legislative confirmation was mentioned
barely, in passing."
CHAIRMAN GREEN advised members there would be testimony by
historians as well.
Number 1715
REPRESENTATIVE BERKOWITZ referred the the portion of "Alaska's
Constitution, A Citizen's Guide," provided in committee packets.
He read from page 107, paragraph 3: "The independence of Alaska's
courts is protected by various means. Most important is the method
of selecting judges." On the next page, towards the bottom, he
read: "Many states have embraced the judiciary reforms in the
years since Alaska's constitution. The basic features of Article
IV have proven workable and remain unaltered." Representative
Berkowitz stated, "And this is the part that I think is really most
telling, and why changing the constitution is of concern: 'Today,
Alaska's judiciary system is recognized nationally as one of the
best in the United States.'"
Number 1745
MR. PIGNALBERI indicated that article had been amended four times.
He said it is a good constitution, made better by some 28
amendments since statehood.
Number 1762
REPRESENTATIVE CROFT asked what those four amendments did.
MR. PIGNALBERI said he didn't think they were terribly significant,
and he offered to provide that information by the end of the day.
REPRESENTATIVE CROFT said that was his own recollection, that they
were rather insignificant amendments to this section.
MR. PIGNALBERI agreed this proposed amendment would be much more
significant.
Number 1772
REPRESENTATIVE JAMES said she hadn't made up her mind, but if there
is any merit to this, it would be in opening it up for a hearing
for the public to participate and ask questions, which she believes
to be the important part of the legislative process. She agreed
there is a difference from when the constitution was written,
citing the attitude of today's public of wanting input.
Number 1824
CHAIRMAN GREEN informed members that several distinguished
testifiers were both on teleconference and in the audience. He
first called upon Judge Stewart.
THOMAS B. STEWART, Judge (retired), Alaska Superior Court, offered
some history of the Missouri Plan, more properly named the merit
system for the selection of judges. Probably the whole movement
began with a famous speech by Roscoe Pound, a 35-year-old dean of
the University of Nebraska Law School who later became a
distinguished dean of the Harvard Law School. Dean Pound's
address, "The Causes of Popular Dissatisfaction with the
Administration of Justice," had launched a nationwide movement to
address problems with the judiciary on both state and national
levels; this came to a head in Missouri in the late 1930s.
Number 1915
JUDGE STEWART explained that in Missouri there had been significant
tampering with the judiciary by the legislature, which was
controlled by machine bosses there. The public was severely
disillusioned with that, and efforts to improve the system gelled
into this scheme of having a merit system for the selection of
judges. Rather than letting an individual announce a candidacy, or
letting the governor choose his pals, a nonpartisan or bipartisan
body would examine the qualifications of individuals to determine
that indeed they were properly qualified to be judges. "And I
don't need to repeat for you what the elements of that scheme are,
because you know them from our constitutional provisions," Judge
Stewart added.
JUDGE STEWART told members that as secretary of the constitutional
convention, he had been very close to the writing of the provisions
on the judiciary in particular. New Jersey had had a terrible
court system, and in their constitutional convention of 1946, they
revamped it completely and established virtually a model system.
Subsequently, Arthur T. Vanderbilt (ph), New Jersey's distinguished
chief justice, wrote a large volume, "The Administration of
Justice"; Sheldon Elliot (ph), his right hand in the drafting of
that work and the executive director of the Institute for Judicial
Administration in New York City, became the principal consultant to
Alaska's convention on this topic. Mr. Elliot sat with the
delegates over a period of time, especially in December of 1955,
and helped them to arrive at what they did.
Number 2027
JUDGE STEWART suggested it is instructive to look at the
territorial history. All of the judges were highly partisan
political appointments during the territorial years, appointed by
the President of the United States and chosen because of political
connections with whoever was President at the time. Often they had
never been to Alaska and were simply sent here. For example, the
last territorial judge in Juneau, Raymond Kelly (ph) - who Judge
Stewart believes was a good judge - had been the president of the
American Legion and an unsuccessful candidate for governor of
Michigan; President Eisenhower had appointed him as a political
favor, and he came to Alaska never having previously been, to Judge
Stewart's knowledge, west of Chicago. Judge Stewart concluded that
the delegates were familiar with a partisan political scheme for
the appointment of judges, which is why they came to this plan.
Number 2079
JUDGE STEWART said he appreciates the sponsor's remarks about
examining the philosophy of judges. However, under a confirmation
process that would quickly run afoul of the Code of Judicial
Conduct. Canon 7(B)(1)(c) of that code provides that a candidate
for judicial office, which expressly includes candidates under a
merit system for the selection of judges, should not make pledges
or promises of conduct in office other than the faithful and
impartial performance of the duties of the office, and should not
announce his views on disputed legal or political issues.
JUDGE STEWART told members, "So it would be quite improper for a
candidate for judicial office to say to a legislative committee,
'These are my views on subsistence, on abortion, on penalty, on
punishment.' He is ethically barred from giving that kind of a
response." Judge Stewart expressed great concern about a process
that would involve a candidate for judicial office beyond a promise
of faithful and impartial performance of the duties.
JUDGE STEWART explained, "There's good reason for that. If a
person pronounces upon an issue before he assumes judicial office,
he or she is pre-judging that issue. And it's a judge's job to
listen impartially to both sides. You don't know ... in what form
an issue is going to come before a court. Take the issue of
abortion. You don't know what fact circumstances are going to be
involved. And a judge has to apply the law as it's given to him,
the decisions of the United States Supreme Court, the decisions ...
which can affect, for example, what appellate judges in Alaska must
do. So the canon derives from a long history of trying to keep
judges from committing themselves before they hear the arguments
and the facts in the cases that are before them. I would be very
concerned about that."
Number 2204
JUDGE STEWART remarked that inevitably, if candidates are subject
to confirmation, they will become involved in the partisan
political process; he had gone through it when appointed as a trial
judge, but the same applies to appellate judges. There will be
competing personalities, and they will look to their friends in the
legislature for confirmation. "I think our court system has been
remarkably free of that kind of problem," he added.
JUDGE STEWART told members that as the presiding judge in Juneau,
he sat on some very sensitive political cases. For example, the
House had had a Democratic majority, but some Democrats defected
and the majority changed during the course of the session. The
minority brought suit in Judge Stewart's court to judge between the
minority and the majority on changing the leadership of that body.
JUDGE STEWART explained, "I had a personal political history. I
was a Democratic party leader for many years, Southeastern Alaska.
From the day that I entered into court service, both as
administrative director in 1961 and thereafter, I have never
attended a partisan political meeting, I have never contributed
money ... to a party, I've tried to keep totally away from any
partisan political involvement. Under this measure, I don't see
how a judge could avoid that. I would be deeply concerned."
JUDGE STEWART told members that in that particular case, he thinks
he judged fairly. He stated, "I said, 'The court has no business
judging this issue, this is an internal legislative issue, I shall
not touch it, you make your own decisions as best you can.' And I
think that's what a judge has to do: He has to look impartially at
all the circumstances before him and avoid partisan political
concerns."
Number 2306
CHAIRMAN GREEN commented, "Well, impartially, I certainly agree
with your decision."
JUDGE STEWART said he doesn't attempt to rejudge. He told an
anecdote about a case he thought he had decided correctly, but
which the supreme court had reversed. However, the supreme court
has a contract with Duke University Law School, which publishes a
law review in which professors and students critique supreme court
decisions. In their critique of that particular decision, they
wrote that the trial judge was right. Judge Stewart pointed out
that it didn't change the law, of course.
Number 2341
JUDGE STEWART noted that our legal system is described as an
adversary system. Judges make decisions based on presentations by
two opposing sides, which presumably summon all the law and facts
that enable the judge to make an impartial decision. Judge Stewart
cautioned that if they put a judge in the position of pronouncing
on his views before he takes office, the judge is no longer
impartial. He said it is a very dangerous step, in his view.
JUDGE STEWART noted that he had served in both the House and in the
Senate, then told members if he were in their shoes, he wouldn't
venture to amend the constitution in this regard without making a
much more elaborate investigation. He suggested, for example,
talking to people from the American Judicature Society, of which he
has been a member for most of his professional life. That society
concerns itself with the selection of judges, working under five
principles that include removing politics from judicial selection
and promoting merit-based systems for choosing judges. Judge
Stewart recommended that legislators listen to a leader in this
field, from that society, about the impact on the merit system with
this kind of a change.
JUDGE STEWART told members, "It's not that I don't agree with the
confirmation process. I think that public officers do need to be
subject to it. The bar association would cut my throat, but I
don't have any problem with your confirming the bar selections.
But I do have a problem with your confirming judges - applicants
for judges."
Number 2445
JUDGE STEWART, on behalf of someone from the Juneau Bar Association
who had left to go to court, offered a copy of "Juneau Bar
Association Resolution No. 98-01" in opposition to HJR 47; he noted
that he himself is a member.
TAPE 98-21, SIDE B
Number 0006
REPRESENTATIVE BUNDE first referred to Representative James' point,
saying we're all captive of our experience and it will affect us in
some way, even if there is an overreaction or opposite reaction.
He said granted that, the judge's job is to interpret the law or
the arguments based on the law. A judge whose personal philosophy
intrudes on that would be in violation of judicial canons.
Representative Bunde asked, "Has it happened in Alaska where judges
have strayed that far and been reprimanded or even removed?"
JUDGE STEWART replied that some judges have been removed under the
provisions for retention; however, in his own judgment, at least
one procedure was not fair; that involved removal of a supreme
court justice in 1964. He indicated he doesn't believe any judge
has been removed on the basis Representative Bunde mentioned.
Judge Stewart then offered his own judicial philosophy. He had
attended Yale Law School, part of the so-called school of legal
realism, which is a philosophy that says a judge cannot totally
divorce himself or herself from his or her background, but must do
the best possible to make the judgment on the basis of the
arguments and the facts of that case.
Number 0089
REPRESENTATIVE BUNDE acknowledged that is how it is supposed to
work, but asked what happens if a judge slips through the process
and strays too far into personal philosophy in interpretation.
JUDGE STEWART pointed out that trial decisions are subject to
review by the appellate process. Appellate decisions in turn are
subject to review if they tread on constitutional issues because
the United States Supreme Court can review the decisions of
Alaska's appellate court if there seems to have been some
impropriety in that regard. "But I guess an ultimate appeal is
only upstairs," he added.
Number 0127
REPRESENTATIVE BRIAN PORTER thanked Judge Stewart for his testimony
and stated, "I am inclined at this time to say I agree with most
everything that you've said, which perhaps is a little different
than the last time we were discussing a piece of legislation. I'm
happy for that. And I think that's somewhat typical of why I have
a problem with this piece of legislation."
REPRESENTATIVE PORTER recalled a much-publicized confirmation
process for the U.S. Supreme Court a couple of years ago, which he
had thought was particularly distasteful. He said, "And I would
have a concern that this could develop from ours. But I guess to
be fair, let me ask: The process that we have now provides the
governor the opportunity to select between two or three or more
folks submitted by the judicial council. Is it not unusual for the
governor to have interviews with those candidates and ask them
philosophical questions?"
Number 0166
JUDGE STEWART answered that it is not at all unusual. However,
under this plan, the governor has nothing like a free hand. He can
only deal with the people that have survived this screening by the
judicial council, and he can add no others. Judge Stewart said to
his knowledge, in no case has a governor been successful in asking
the council to submit additional names.
REPRESENTATIVE PORTER said he thought there had been an attempt.
[Other members commented simultaneously about additional attempts.]
Number 0189
JUDGE STEWART told members he would speak strongly against this
amendment before the electorate, if they considered it. He
cautioned that were it to pass, however, there may be unintended
consequences. The council now does a very careful, thorough job of
examining the qualifications of candidates, coming up with what the
council finds to be the best-qualified candidates. "And if the
legislature fails to accept that, you're going to get a lesser-
qualified candidate," he concluded.
Number 0223
REPRESENTATIVE JAMES pointed out that in Alaska's constitution,
only the legislature can put a constitutional amendment out to the
people. She suggested that indicates legislators have some
responsibility and should not take lightly putting constitutional
amendments out there. She reminded members that the legislature
supposedly has all the information, which the public might not. In
addition, ruling by the masses is not necessarily in the best
interest. She requested a response.
JUDGE STEWART said, "If you look back to the formation of American
government in the late 1700s, it's clear that we do not have a pure
democracy. We are a republican form of government, and our
Founding Fathers of the American constitution saw that it would be
impossible to have the entire electorate consider the details. And
the job is delegated to the elected representatives. This is the
kind of an issue which it seems to me must be determined here, in
the legislature."
JUDGE STEWART explained that it is a very dangerous issue to send
out to the public at large, because there is no adequate forum. It
isn't lack of intelligence of the public, but lack of an
opportunity to consider all that comes to bear on the issues.
Those can be debated adequately in a deliberative body like this
one, but if they send it out to the voters, it will not get an
adequate hearing. The newspapers and television stations can't
give it sufficient coverage. Many people don't read those or look
at those, and they decide these kinds of issues on shallow grounds,
without looking at the ramifications that are there. Judge Stewart
told committee members, "And it seems to me that the decision is
yours to make whether this is a wise thing. And if I have any
influence on you, I suggest that it is not."
REPRESENTATIVE JAMES agreed it is those unintended consequences
that they need to consider.
Number 0342
REPRESENTATIVE ROKEBERG asked whether this doesn't just mirror the
federal system but then add the judicial council. He questioned
whether a witness before a congressional committee would be
ethically barred from indicating his philosophy or statement, when
in fact all the federal judges and U.S. Supreme Court candidates go
through that grilling before Congress.
JUDGE STEWART pointed out that the congressional system is very
different. It is not a merit system for the selection of judges
but a partisan political appointment process in which the sitting
President chooses the candidate. Although to some extent the
American Bar Association is involved and makes recommendations to
the President on candidates for judicial offices, it is in no way
equivalent to our merit system. Judge Stewart commented that what
happens in the Congress sometimes verges on being a circus. He
cited the example of Robert Bork's confirmation hearing and said he
doesn't want to see our judges put through that.
CHAIRMAN GREEN thanked Judge Stewart, adding that his insight had
been duly noted by all the members. He then called on Jack
Coghill, ex-lieutenant governor and former legislator.
Number 0449
JOHN B. "JACK" COGHILL, Ex-Lieutenant Governor, testified via
teleconference from Fairbanks, saying his approach to HJR 47 is a
little different from Judge Stewart's. He stated, "I come from the
side that the public really needs to know." Noting that he had
been part of the Alaska Constitutional Convention, he said although
he had agreed on the need to ensure it was kept out of the
political process, he doesn't think they had really understood the
need to ensure that our whole third-branch system has a more public
process. He said 20/20 hindsight shows that too much hidden power
lies within the judicial council.
EX-LIEUTENANT GOVERNOR COGHILL stated, "I think that if you take a
look at the background of most of our trial judges that you'll find
that most of them have risen to judgeship through the buddy system.
We have inside attorneys or public attorneys. I think one of the
things that we failed to do in the constitutional convention was to
make sure that there was a private process and practice with
attorneys before they elevated themselves to judgeships ... and
through the judicial council. And I think that the provision that
strikes me the most about House Joint Resolution Number 47 is the
process to which we have appointments to the judicial council, and
that's where Judge Stewart and I agree."
Number 0578
EX-LIEUTENANT GOVERNOR COGHILL suggested that legislative oversight
is healthy, placing the three branches more closely into the public
sector rather than into the political arena. He stated, "We
already have oversight in the legislative process with the budget.
We have oversight - if you want to say oversight - of the rule-
making process with the supreme court, if you can muster [a] two-
thirds' vote within the legislature of both houses, and you know as
well as I do that that's almost impossible." He suggested the need
to bring those three branches of government closer together with
public awareness and, importantly, public input.
EX-LIEUTENANT GOVERNOR COGHILL said the rule-making process given
to the supreme court is conceived now more towards the betterment
of attorneys and their fees, and not to the "speedy resolve to an
issue that the court or that the constitution guarantees." He
indicated the public perceives that the only winners in court are
the attorneys, who receive large fees and play attorney games until
the clients are worn down and willing to stipulate.
Number 0678
EX-LIEUTENANT GOVERNOR COGHILL suggested the Alaska Supreme Court
would welcome the change "as putting the whole judicial system more
into the public review process, rather than making it an Ivy-
League-type, attorney-controlled, basically, system." He stated,
"And I think that when we wrote the constitution that we were
trying to debate the issue, 'Shall we have a merit system program,
a Missouri Plan, or shall we have an elective process where the
(indisc.) and the political process gets a person to garner most of
his money from either one special group or another?'"
EX-LIEUTENANT GOVERNOR COGHILL noted that he isn't an expert on
this but had read the journals the previous day. He stated his
belief in the Jeffersonian principle that citizen review of the
constitution should be the right of each generation; he said that
is why they put in the constitution that review should be made
every ten years, not by sections or by articles, but as a whole.
He concluded, "'Shall there be a constitutional convention?' And
you open up a Pandora box, and you don't know what you're going to
have. But I think this resolution puts us closer to that goal,
that if there are items that are of interest to the public - not
necessarily, now, to the interests of the attorneys or the
interests of the judicial system - but to the interests of the
general public -- and the general public, Mr. Chairman, is very
frustrated with our judicial system today."
Number 0732
REPRESENTATIVE BERKOWITZ asked what role or interest Mr. Coghill
thinks the public has in the impartiality of the judiciary.
EX-LIEUTENANT GOVERNOR COGHILL suggested someone who isn't in the
system won't know whether the system is broken. He mentioned the
last two years of his own legislative experience and the juvenile
or family court review process; he said the people in that system
know that it is broken, and once they get into it, they can't get
out. He said it is the rule-making process that comes down from
the supreme court that created that attitude. He concluded, "And
what I'm saying ... is that we need to have where there's a forum
where people can vent their frustration as to the system, and to
give you folks, that are the legislative or the policy-making
process of our system, the interest that's necessary to change it."
Number 0805
REPRESENTATIVE COWDERY asked whether Mr. Coghill views HJR 47 as
somehow diminishing the merit system of selection.
EX-LIEUTENANT GOVERNOR COGHILL said he doesn't believe it does at
all, because the original process is to go through the judicial
council, which would be reviewed by the citizens' elected
representatives. He stated, "You know, I'm a constitutionalist.
I believe that there's basically three branches of government.
There's the administrative branch, which administers the laws that
are presented ... by the legislature. You're the direct link
between government and the people that voted for you. And then
there's the judicial system. And the judicial system is getting to
the point where that by a rule-making process, they get into the
point where that they're making law, instead of the legislature
making that law policy."
EX-LIEUTENANT GOVERNOR COGHILL continued, "So, I believe that the
merit system is not damaged at all by this process, because first
of all, the nominations go through the judicial council, which has
your review, and then it comes before you to ask the basic
questions of policy. And I disagree with ... Judge Stewart about
the fact that -- that you talk about philosophy. Well, are you
conservative? Are you constitutionalists? ... Are you liberal?
Are you a government-control-type person? I think ... the public
has the right to know those things (indisc.) of your judicial
system."
Number 0904
REPRESENTATIVE ROKEBERG referred to Section 3 and thanked the
committee counsel [Kevin Jardell] for clarifying that meaning for
him. He said there is a substantive change that would provide that
attorney members of the judicial council would also be subject to
confirmation, and that is the distinction.
Number 0944
WILLIAM T. COTTON, Executive Director, Alaska Judicial Council,
came forward to testify in opposition to HJR 47. He explained that
the council is a small independent agency created by the state
constitution in the judicial branch of government. Mr. Cotton
stated, "The council has directed me to urge you to vote against
this proposed amendment, HJR 47."
MR. COTTON provided a brief background. The council has duties
assigned by law in three areas. One area, research into the
administration, is not relevant here. A second area is to evaluate
the performance of judges and make information available to the
public. Mr. Cotton told members, "We do more in Alaska in that
regard than is done anywhere else in the country and, indeed,
anywhere else in the world. The judicial council surveys all
attorneys in Alaska, all police officers, probation officers, all
jurors who appeared before that judge in the last term, all court
employees. This year we're adding social workers, GALs - guardian
ad litems - and CASA workers [court-appointed special advocates].
In other words, in those child custody cases, we wanted to get some
more input in that area. It is a great concern, of course, these
days. We ask ... for the 'court watch' report, which is a group of
citizens organized by the Victims for Justice, and the summary of
that report is included in the council's report to the voters
also."
MR. COTTON told members there are also statewide public hearings.
The great majority of information, including review of appellate
records, peremptory challenges, credit reports, criminal history
reports, and much more, is available to the public. There is a
summary page in the voter pamphlet on each judge. The last time,
almost all that information was available in an almost-two-inch-
thick booklet. Furthermore, it is all out on the Internet, as it
will be again this year. Mr. Cotton emphasized the thoroughness of
the review process, then added, "And you, as a voter, can find out
more information about your judges in Alaska than anywhere else in
the country."
Number 1060
MR. COTTON advised members that the third area of focus for the
council is the screening of judicial applicants to try to find the
best-qualified applicants. The council's thoroughly screening
includes holding a public hearing, always at least in the location
where the vacancy is. It is based on honesty; fairness, a great
concern; intelligence; temperament; whether they treat people with
respect; experience; willingness to work; whether they can control
a courtroom and whether they are committed to the public interest.
MR. COTTON pointed out that certainly the council looks at where
the person comes from; for example, they don't want a public
defender who can only see that side of the fence, and the same is
true for people with experience in other areas. However, where
people come from doesn't necessarily reveal where they will end up.
Mr. Cotton recalled looking at police officer evaluations of
sitting judges a few years ago, when there was a similar question.
Interestingly, those police officers had rated the former public
defenders marginally better than the former prosecutors, and they
had said that those who had gotten through the judicial council and
been appointed by the governor were, by and large, doing a good
job, although there were concerns with individuals here and there,
of course.
MR. COTTON said the bottom line is that the council believes Alaska
has a system that works well, that delicately balances the need for
judicial independence with the need for public accountability. He
stated, "Our system in Alaska is respected nationally. I regularly
receive calls from other states about how we do things in Alaska.
But it's more than that. I recently got a call from the former
director of the New Jersey court system, who has been hired by the
feds to give advice to the Republic of Georgia; and they're setting
up a judicial council there, and they asked me to come to the East
Coast and were going to pay for my trip to talk to them about how
we do things in Alaska. So, not only other states look to Alaska,
but actually other countries." Mr. Cotton indicated Alaska is a
model for some of these Eastern countries emerging from communism.
Number 1203
MR. COTTON stated, "Judge Stewart covered the constitutional
convention very well, and I won't repeat what he said, other than
the constitutional convention did look at legislative confirmation
of judges. They looked at the New Jersey Plan, which does have
legislative confirmation, and rejected it. They also specifically
discussed and rejected legislative confirmation of attorney members
of the council. That vote was 49 to 4; Jack Coghill was one of the
4. But it was 49 to 4, and it was discussed." Mr. Cotton urged
members to look at those minutes. He suggested they would be
impressed by the thoughtfulness and thoroughness of the discussion.
Number 1248
MR. COTTON referred to the federal system, in which the President
basically appoints who he wants to; once confirmed, that person
serves for life. In such a system, there must be some kind of
check on the President. Mr. Cotton explained, "I think in that
system, you need legislative confirmation. But even under that
system, things sometimes do go wrong, and sometimes those hearings
become much of a circus." He referred to earlier mention of one of
President Reagan's candidates, Bork, and said the term "being
Borked" had almost come into the popular understanding.
MR. COTTON pointed out that Alaska has no appointments for life,
and there are retention elections in which the public votes. In
addition, the judicial council is a check on the governor's
appointive powers, which the governors aren't always happy about.
Mr. Cotton mentioned examples: "A little over a year ago, Governor
Knowles asked the council to send in more names. He asked his
attorney general to call the council members and lobby them. The
council respectively declined to submit more names. A similar
thing happened with Governor Hickel several years ago, and I
believe it was quite a similar thing happened with, I believe it
was, Governor Sheffield, before my time with the council."
MR. COTTON told members the council takes its duties very
seriously. It is not a system that pits non-attorney members
against attorney members. He said, "I asked my staff to take a
look at the votes since 1987, and there were 399 votes on
applicants. Out of those 399, there were 8 in which the attorneys
had voted against the non-attorneys. Actually, in 2 of those 8,
there was only one non-attorney there. But even in those 8 out of
399, the chief justice sided with the non-attorneys half the time.
So, I think that tells you something about how the council takes
its job seriously and works together."
Number 1371
MR. COTTON noted that the council's thorough investigation takes
about six months, from the time the council begins to solicit
applicants until the governor appoints. That is unfortunate,
because applicants, particularly those in private practice, have to
almost put their lives on hold for that time period, which is very
difficult. However, this legislation could possibly even double
that time, depending on what time of year the vacancy came open.
If it was January, for example, and the governor's appointment
didn't come until after the session, that person would have to wait
until the next year. Mr. Cotton stated, "I think that would be
particularly difficult for the private-practice practitioners, and
we need some of those people on our appellate courts."
MR. COTTON concluded by saying he and the council, both attorney
members and non-attorney members, believe that Alaska has a system
that works pretty well, acknowledging that nothing designed by man
is perfect.
Number 1441
CHAIRMAN GREEN commented, "I know people that vote against judges
every time the election process comes up, in spite of the booklet
that you provide, which is, I think, exceptional. And yet, judges
seem to be almost, within a few percentage points, overwhelmingly
retained." He asked whether Mr. Cotton believes that indicates an
apathetic voting group or that the caliber of those selected is so
high that there is no animosity.
MR. COTTON replied, "I think there's several reasons. I think the
council does do a good job in selection, and that helps us with
retention. I think that the fact that we do all these evaluations
on judges - I think that we ask the cops, the attorneys, the jurors
- keeps them, to a certain degree, shall I say honest? I don't
mean honest ... as far as dishonest, but keeps them responsive to
the people who are in front of them. And then the council has
occasionally recommended against judges, and the public has
occasionally followed those recommendations. The last situation,
you will occasionally see judges who decide to retire right as the
council is doing their evaluation. Sometimes it has nothing to do
with it, sometimes it clearly has something to do with [it], and
sometimes you're not sure. But that sometimes happens also."
Number 1518
REPRESENTATIVE BUNDE asked Mr. Cotton to address Representative
Cowdery's concerns, noting that there are checks and balances where
the voters get to confirm judges. However, it may occur as much as
six years into the judge's service.
MR. COTTON explained, "It wouldn't ever be quite as much as six
years, although it could get close to that. I believe that the law
provides that an appellate court judge will be on the ballot at the
first election at least three years after he was appointed. So, it
will on average, let's say, be about four years. The reason that
you have that time period there is to give some time to evaluate
the performance as a judge. That ... time period is certainly
arguable, but that's the basic reason behind it."
Number 1574
REPRESENTATIVE BUNDE asked whether Mr. Cotton believes that system
works now and there is no reason to shorten the time period.
MR. COTTON replied that the law used to be that for district court
judges it was only two years. He stated, "And that was a problem.
It was too short, because we start our evaluation actually a year
before the election. So we were trying to evaluate someone who had
been on the bench for, in some cases, just barely a year. And we
really weren't able to get very good information about how they
were doing as a judge .... So I think the three-year period is
probably a pretty good one. Actually, the legislature, I believe,
changed the period for district court judges to three years now
...."
Number 1615
REPRESENTATIVE CROFT posed a hypothetical situation where two names
are sent up. He noted that currently a governor might not like it
but would eventually have to pick one or the other. Representative
Croft asked, "If they pick one and the legislature refuses to
confirm, what do we do then? Is it the other one? Is it a new
process?" He asked to hear first from the sponsor about his
intent, and then from the judicial council on how that would work.
Number 1662
REPRESENTATIVE COWDERY responded, "My intent was, I don't think all
- as we said earlier here, I think the gentleman said - all people
that are forwarded are always selected. Sometimes you have to go
back and pick somebody -- that has never happened?"
MR. COTTON replied that it had never happened to his knowledge,
although in three cases the governor had asked.
REPRESENTATIVE COWDERY suggested the merit system would still
exist, saying he doesn't see where this impacts that whatsoever.
He asked Representative Croft to restate the rest of the question.
REPRESENTATIVE CROFT asked, "If we reject number one, is it
automatically number two that gets sent up? Or do we send them on
a new hunt?"
REPRESENTATIVE COWDERY said he supposed it would be whatever exists
now. He added that he hadn't thought that out.
REPRESENTATIVE CROFT suggested that if the second candidate were
rejected, clearly they would need to go on a new hunt for the
third-best-qualified, fourth-best-qualified and fifth-best-
qualified people who had applied. However, he didn't know what
would happen if the legislature rejected the first candidate.
REPRESENTATIVE COWDERY replied that this resolution is just a vote
of the people, and he restated that he hadn't thought of that
issue. He added, "And I don't know if that's appropriate in this."
CHAIRMAN GREEN noted that it has yet to be determined.
Number 1785
REPRESENTATIVE PORTER said this would provide confirmation for the
original appointment of appellate judges. All of that track record
and information is not available to the public on the Internet at
that time. He asked, "What information is available to the public
on the folks that would be sent up to the governor for original
appointment to an appellate position?"
MR. COTTON answered that the council collects as much information
as it can about applicants who apply to appellate and other
positions. Most of that information is available to the public,
although not all is. Mr. Cotton explained, "We do send letters to
references, personal, professional references and also every place
this person worked. We also, of course, collect the information
about their schooling. Those letters are not available to the
public. We promise those people confidentiality and in fact say
we're not going to show them to the applicant, because sometimes
even the people that the applicant picks to give them references
don't give them very good references. And obviously we want their
honest opinions, and that can be very valuable information."
MR. COTTON reported that the council surveys all the attorneys in
the state, to determine how the attorneys who deal with them rank
them as far as overall temperament, legal ability, professional
experience, and a couple of other things. Those survey results are
available to the public, and the council puts it out in a press
release. They also review bar disciplinary records, and they get
access to confidential bar files containing how many fee
arbitrations a person has been in, because if there have been a lot
of fee arbitrations and bar complaints, even if they were thrown
out, it shows that maybe they aren't communicating well with their
clients. That information would not be available to the public.
Mr. Cotton indicated that credit checks and criminal history checks
would not be available, either, noting that there is some
controversy there.
Number 2052
TOM FINK testified via teleconference from Girdwood, stating
support for HJR 47. Noting that Alaska has operated under another
system for 40 years, he suggested it needs some improvement. He
believes additional review by the legislature would bring out more
background about appointees. He said our system isn't terrible,
but as far as he is concerned we have too many judges who literally
make law rather than interpret it. He stated, "I don't think we're
any better or any worse than the federal, and the federal has a
confirmation process, which this is recommending." He suggested
that because there would still be the judicial council, there would
still be the merit recommendation. Mr. Fink said a good number of
people feel unhappy with the judicial system. If the legislature
confirmed, it would take a lot of that pressure off. And whether
or not it was improved, he thinks the public would feel that the
judges were selected in a more representative fashion.
MR. FINK referred to the current retention election and suggested
that if someone doesn't run against a person, no one will say
anything bad about that person. "If there are two people running,
you get a much better chance of finding out the good and bad of
each of the people," he said. "So the election we have is better
than nothing, but it's not like a true election."
Number 2133
WARREN MATTHEWS, Chief Justice, Supreme Court, Alaska Court System,
came forward to testify, saying their concerns are threefold: They
are afraid legislative confirmation will politicize the process;
they are very concerned about the potential for delay and stalemate
inherent in the system proposed; and they are concerned about
degradation of the merit selection system. He offered to address
those concerns in order.
CHIEF JUSTICE MATTHEWS discussed politicization, saying in the
federal analogy, whenever the President is of one party and the
Senate is of another, there is a potential for quite a bit of
controversy. He cited examples, then noted that in Alaska, that
split authority has recently been more the rule than the exception.
He pointed out that typically, voting in controversial cases goes
down party lines. For example, in the federal arena, every
Republican voted for Clarence Thomas, whereas every Democrat voted
against him; and although he didn't know that Bork's confirmation
ever went to a vote, the alignment went that way.
CHIEF JUSTICE MATTHEWS expressed concern that when there is voting
like that, the success of the justice who is then confirmed is seen
as somehow obliged to the party that put him there; that party
would have championed his cause, and the other party that opposed
him would be his foe. Chief Justice Matthews raised the question
of what is wrong with having a justice, or maybe a majority of
justices, who have gone through that process, then answered that
the court has cases with political overtones.
CHIEF JUSTICE MATTHEWS cited examples. Every reapportionment time,
there are reapportionment cases with political overtones. The
judges must be able to decide them impartially, and their judgment
must be impartial both in fact and in appearance. Chief Justice
Matthews asked whether they can make judgments like that if they
have a process like this. He told members that in addition, there
are cases where the allocation of authority between the legislative
and executive branches is in question. He mentioned a recent
example involving the Alaska Public Utilities Commission.
TAPE 98-22, SIDE A
Number 0001
CHIEF JUSTICE MATTHEWS reported that occasionally, even internal
legislative disputes come before the court, if they involve
constitutional questions. He cautioned that there is a danger of
actually creating kind of a partisanship with this process, and
there is an even greater danger of creating an appearance of
partisanship. Neither is valuable, and both are to be avoided.
Number 0061
CHIEF JUSTICE MATTHEWS discussed the second area of concern, delay
and the potential for stalemate. He himself was appointed in late
May of 1977; if this system had been in place, there would have
been no chance of legislative confirmation until the following
session, more than seven months if all went well. A person
appointed out of private practice would have to mark time for quite
a while.
CHIEF JUSTICE MATTHEWS explained that the big problem, however,
would be damage to the court. Their operation on the supreme court
is seriously impacted when there are gaps in membership. Chief
Justice Matthews offered to show statistics that theirs was the
nation's most stable court during the 1980s, with five people
together for more than ten years. That is nearly unprecedented,
and they got pretty efficient; their time of disposition got down
to an average of five months after argument that they published the
opinion, which he believes was pretty good for them or any court.
Number 0186
CHIEF JUSTICE MATTHEWS noted that as people have aged and retired,
they've had three changes in rapid time. Statistics show that the
disposition rate has grown, beginning in the 1990s, to where it has
now doubled the best they had previously achieved. Although they
are a little ashamed of it, there is a reason for it: It is just
normal. They encourage new justices to take office as soon as they
can, and there is a time when they are getting up to speed.
CHIEF JUSTICE MATTHEWS said that is the normal delay. If, however,
they have the extraordinary delay that can be inherent in this
resolution, even seven months' delay, it will hurt the operation of
the court. Although the court of appeals can use pro tems, the
supreme court has rejected the idea of using temporary substitutes
because it distorts the precedent. For example, one can
legitimately wonder, when there is a 3-2 decision and one of the
deciders is a temporary person, how long that precedent will last.
Therefore, they don't use pro tems routinely, and in this decade
they haven't used them except maybe in extraordinary circumstances.
CHIEF JUSTICE MATTHEWS told members that in the court of appeals,
a high-volume court, each judge must author ten opinions a month or
find himself going under water. He commented, "And ten is all you
can do, and all we do is four, and we think we're working hard.
But if you increase the workload by removing a third of the court -
or delaying the appointment of a third of the court by a system
that has delay inherent in it - you will really impose a great
burden on that small court."
Number 0379
CHIEF JUSTICE MATTHEWS mentioned the potential for stalemate when
the legislature cannot agree with the governor's appointment,
noting that what would happen then is still ambiguous. Either way,
there is quite a bit of delay, and it is not something the court
looks forward to. Chief Justice Matthew told members the federal
system now is in a state of crisis, with something akin to a near-
total refusal to confirm appointments. However, that is a huge
system with great resources and lots of retired judges, and they
are using pro tems, retired judges and judicial surrogates. For
example, one recent important federal case was tried by a
magistrate, which happens increasingly in the federal system,
partly because it is one thing they can do when dealing with the
type of delay inherent in that system.
Number 0501
CHIEF JUSTICE MATTHEWS referred to the third point, the merit
selection system, and said it sounds a little haughty coming from
someone who has cleared the system, but the best-qualified
candidates are the only candidates who are supposed to come up. He
expressed concern that if the system is designed so that - through
a combination of executive and legislative disagreement - neither
of the two candidates that might be sent up is acceptable, they
might have to work their way down the list.
Number 0566
REPRESENTATIVE JAMES asked whether Chief Justice Matthews would
agree there is already built-in partisanship, and that judges
necessarily follow their own basic philosophies. She discussed the
swing of the pendulum and federal appointments, then asked whether
legislative confirmation wouldn't only make the partisanship
possibility more visible.
Number 0654
CHIEF JUSTICE MATTHEWS replied, "In our tradition in this state, I
wouldn't agree that there is a partisanship. I don't know the
political registration of my colleagues. We don't discuss it.
I've never asked and won't ask. And I know that many governors
have appointed members of opposite parties; in my case, that was
true. As I say, I'm not quite sure whether it's true or not in
other cases. But we have no tradition of political affiliation
with the appointing authority."
CHIEF JUSTICE MATTHEWS said that can be seen in U.S. Supreme Court
appointments, but he is not sure whether it can be seen much in the
appointments of the lower federal courts. He doesn't accept the
premise that partisan politics is inherent in the appointment of
Alaska's judges. "It's not something that I'm aware of," he added.
Chief Justice Matthews concluded by suggesting that if there is a
public perception that partisanship is involved, it is not
justified.
Number 0784
REPRESENTATIVE JAMES commented that she doesn't think it is
avoidable or bad, but inherent. "And so therefore I think we need
to minimize it as much as possible, but I don't think we can
eliminate it," she added.
Number 0810
REPRESENTATIVE COWDERY asked how Chief Justice Matthews thinks the
merit system would differ if this resolution passed.
CHIEF JUSTICE MATTHEWS explained, "Well, you have, say, five
applicants go through the judicial council screening process. ...
What we usually do is we look for a clear break, using the various
procedures that we have. The break may come at two, it may come at
three, it may come at four, or they may be no breaks, so you send
up all five. Sometimes it comes at two, so you send up only two."
He suggested if the governor appointed the first candidate, that
candidate was rejected by the legislature, and the governor refused
to appoint the second candidate, they would go back through the
cycle. Assuming the same pool of candidates, they would then take
candidates three and four, who according to the standards
established by the judicial council are not among the best-
qualified candidates.
Number 0886
REPRESENTATIVE ROKEBERG asked, "Mr. Chief Justice, do you believe
that the cases that emanated from the Alaska Supreme Court ...
would be characterized as liberal, conservative or middle-of-the-
road, from a national perspective? Have they in the past, or are
they currently?"
CHIEF JUSTICE MATTHEWS replied that he doesn't know that he would
characterize them one way or the other. He added, "You'd have to
look in various areas, too. If you're talking about sentencing
law, search-and-seizure law, free-speech law, privacy law, ...
there are different things that different commentators would say.
And I just don't want to go on record as making any
characterizations. But ... if you're interested in the subject,
look at the latest Albany Law Review, and it discusses the voting
record of ... the five of us who were together for ten years, and
it's sort of interesting that they would take the trouble to
analyze our voting records. But you'd be very surprised as to who
is a conservative and who is a liberal, according to their data."
Number 0980
REPRESENTATIVE ROKEBERG said he would take the time to do that. He
then asked whether Chief Justice Matthews believes the public
should have the right to know if a particular judicial candidate
has had an affiliation at one end of the spectrum or another; he
cited as examples membership in the Ku Klux Klan, the Sierra Club
Legal Defense Fund, a right-to-life organization or the Trustees of
Alaska.
CHIEF JUSTICE MATTHEWS replied that he would defer to Mr. Cotton on
this, but the screening process by the judicial council does go
into groups that the candidates might be members of. He said it
would be pretty inconceivable that a person who is a declared
member of the Ku Klux Klan would pass the screening council.
However, as far as the other groups, he doesn't know that anyone on
the council would regard those as disqualifications. He indicated
it is difficult to say what the decisions will be later on.
CHIEF JUSTICE MATTHEWS said it is a bit hard for him to see how the
right to know is denied in the current process. It is a public
process with public hearings, and the interviews conducted of each
candidate are open to the public. The only thing he knows of in
the process that is not public, at the judicial council level, is
the actual deliberations; they go into executive session for that,
which he believes is the proper way to go. He added that the file
that is accumulated, the prior public hearings and the interview
itself are public. "We try to make it an open process," he
concluded.
Number 1158
CHAIRMAN GREEN asked, "If there are lifetime appointments to
judgeships, do you feel that there is a potential there for ...
separation occurring between the judiciary and the majority of the
people?"
CHIEF JUSTICE MATTHEWS answered, "I do, and I don't favor lifetime
appointments." He emphasized that we do have public accountability
in our judges. Although people say that nobody ever gets voted
out, that isn't quite true, because we have had experiences where
people are voted out. He told members there isn't a judge with a
retention election coming up who isn't concerned about public
reactions to decisions, adding, "I hope it's not so great a concern
that it affects decisions, you know, because you don't want to make
decisions merely because they're popular." He said he believes we
have a good balance; given our merit selection method, it seems
appropriate to have a public review. Chief Justice Matthews
concluded by saying although one could think of other ways to do
it, he doesn't think he would ever advocate a lifetime appointment.
CHAIRMAN GREEN thanked Chief Justice Matthews for taking the time
to come before the committee.
Number 1260
GERALD J. DES JARLAIS testified via teleconference from Anchorage
in support of HJR 47. He said with all due respect to the Chief
Justice, it is inconceivable that all appointments to the bench to
date have been completely nonpartisan. He believes there is a real
possibility and potential for it to be the ultimate partisan
decision, and for that reason alone, it should be examined
carefully.
MR. DES JARLAIS told members that over the years he has become
increasingly concerned at "seeing the views of a tiny but energetic
minority imposed on the vast majority, simply because they were
able to find a judge who was sympathetic to their views, and with
a rap of his gavel it became law." He said he thinks that is
wrong, and the appointment of the judges is a factor in those very
things. He strongly supports the independent judiciary and would
certainly never favor some kind of litmus test for judges.
However, he believes it is in the public's best interest that the
judiciary reflect the broad general philosophies and values of the
electorate, and HJR 47 is a step in that direction.
MR. DES JARLAIS stated, "The bar association: in my view, probably
all very honorable gentlemen, but I can't believe that they respect
or represent my views, or are as interested in my views and my
philosophies as my legislator, who has to come to me every two
years and ask for my vote. So, ... I'd like to know what someone's
values are, what they believe in, before they become a judge,
because it is an extremely important ... appointment that bears
heavily on my lifestyle, my business and a variety of things. I
think these things should not be kept secret from the public, as
they are now. I realize there's a public hearing, but not the same
as a legislative hearing where there's an examination of these
candidates. Thank you."
CHAIRMAN GREEN thanked Mr. Des Jarlais and asked whether there were
questions. He then called on Mr. Schendel.
Number 1415
WILLIAM B. SCHENDEL, President-elect, Alaska Bar Association (ABA),
came forward to testify, specifying that he has practiced law in
Alaska since 1974. He told members the ABA is a mandatory bar
association; they represent all of the attorneys in Alaska, as well
as all of the judges, who by definition are attorneys. There are
2,200 active attorneys in the state. The ABA is governed by a 12-
person board, three of whom are lay members. Since 1959, the
association has been vested with the constitutional responsibility
of appointing the three attorney members of the seven members of
the Alaska Judicial Council. It is from the ranks of the ABA's
practicing members and the judicial officers that judges are
appointed in Alaska. Mr. Schendel noted that the ABA is
constitutionally precluded from being involved in partisan politics
or spending a single cent of its money on any partisan matter.
"That's by virtue of a constitutional case called Keller (ph)," he
added.
MR. SCHENDEL told members the ABA is concerned about several
aspects of HJR 47; he would focus on practical rather than
philosophical matters and emphasize the law of unintended
consequences. First, the ABA is concerned that the addition of
legislative confirmation for the appointment of attorney members to
the judicial council will politicize the process.
MR. SCHENDEL described the current process for appointment of
attorney members to the judicial council. When a vacancy occurs in
one of those three attorney seats, the ABA solicits nominations
from all members, then conducts a secret-ballot vote of all members
for the geographical area in which the vacancy occurs. Although
not obligated to do so, the ABA board has routinely selected the
top vote-getter among the candidates for the bar vacancy. Mr.
Schendel stated, "I'm not aware of a single instance in which the
board has declined to appoint the top vote-getter from the
selection process. That means, as far as I can see, that the board
has exercised no partisan judgment in the selection of the bar
appointees to the judicial council."
MR. SCHENDEL continued, "It's equally true that when people run for
one of those bar seats that their contests - at least historically,
up to this point - have not been conducted on a partisan basis.
I'm not aware of a single contest - where attorneys have been
running for the vacancy on the judicial council - where any
candidate has identified him- or herself as a Republican, as a
Democrat, as a liberal or as a conservative. Nor am I aware of any
situation in which people have campaigned against candidates on
that basis."
MR. SCHENDEL observed that contests for the attorney seats on the
Alaska Judicial Council are run on the same basis as contests for
seats on a school board or a borough assembly, that is, on the
basis of whether the person is attentive to the wishes of his or
her constituency on the basis of, for instance, whether or not that
person is a good listener. He said given that history, he hopes
that members of this committee understand why the ABA is fearful of
the prospect of converting that into a partisan race.
Number 1611
MR. SCHENDEL told members the ABA's second concern is that
legislative confirmation of judicial appointees will politicize the
process, thereby restricting and skewing the pool of applicants
willing to put in for a judgeship. He said, "My experience is that
attorneys do not - and have not during the course of my 20-plus
years of practicing law - thought of judges in terms of the
identity of who has appointed the judges. That is, attorneys do
not think of judge 'A' as having been appointed by a Republican or
by a Democrat. Attorneys also do not characterize judges - by
themselves, between themselves - as being liberal ... or
conservative."
MR. SCHENDEL said that nonpartisan aspect of the Alaska judiciary
is reflected in the application process itself. Attorneys who
choose to put in for a judgeship do not campaign on the basis of
their party or partisan philosophy. The ABA is concerned that if
legislative confirmation is requirement by the proposed amendment,
that will change, skewing the pool of applicants. As Chief Justice
Matthews had mentioned, there is currently a significant gap
between the point when somebody puts in an application for a
judgeship and the date of the ultimate appointment, typically about
six months. During that time, all applicants for a particular
vacancy are ethically obligated to tell all clients that they are
running for a judgeship. Consequently, many current and potential
clients will decide not to patronize that attorney because of the
prospect that if appointed, the attorney will no longer be able to
finish that client's representation and the client will be forced
to seek other counsel, at extra expense.
MR. SCHENDEL expressed concern that adding another six months or
more of delay will further impact clients. As a consequence, fewer
and fewer private practitioners will apply for judgeships. He
explained that current appointments to judgeships are already
disproportionately skewed in favor of people from public employment
backgrounds, who have been district attorneys, public defenders or
assistant attorneys general. Mr. Schendel predicted that adding
this legislative confirmation, which will politicize and delay it,
will further skew the pool of people willing to apply for
judgeships, and although unintended, there will be an even greater
concentration of public attorneys among the applicants.
Number 1773
REPRESENTATIVE PORTER asked if it is difficult for an ABA member to
go through that process, recognizing that he may vote against
someone who is appointed and that it might get out.
MR. SCHENDEL replied, "The votes are public. I'm not aware of any
repercussions that have happened there, and I don't see anything in
the proposal before the committee that would address that in any
case." Mr. Schendel said he thinks there is some sensitivity,
especially if someone is from the same hometown as an applicants;
someone would have to have pretty good reasons and a pretty thick
skin to vote against somebody who was on the margins.
REPRESENTATIVE COWDERY asked how long the terms are for lawyers on
the judicial council.
MR. SCHENDEL said six years.
REPRESENTATIVE COWDERY asked whether they get renominated.
MR. SCHENDEL deferred to Mr. Cotton.
MR. COTTON said they can be reappointed once, although that hasn't
happened in quite a few years.
REPRESENTATIVE COWDERY asked if Mr. Schendel is a practicing
attorney.
MR. SCHENDEL said yes, private.
Number 1859
GEORGE WILL, JR., testified via teleconference from the Mat-Su
Legislative Information Office (LIO), specifying that he is in
support of the concept of HJR 47, although he believes
constitutional amendments should not be taken lightly. He
suggested before it is passed, several other issues ought to be
visited. Specifically, district and superior court judgeships are
excluded from this bill, and he would like to see them included.
MR. WILL told members he doesn't believe retention elections are
working in Alaska, suggesting that for the most part, the public
has no experience in the court system and automatically votes for
retention. He would like to see a term limit of six to ten years
put on judgeships, depending on the level of judgeship. He agreed
with Mr. Coghill that the courts make a lot of law, rather than
administering and interpreting the law that the legislature passes,
which he said concerns him greatly.
MR. WILL further said the cases mentioned in the federal system are
sensational cases, but not the rule. He stated his belief that in
the federal system, just about all levels of judges are approved by
the Congress. He would definitely like to see all the judges in
Alaska approved through the legislative system.
MR. WILL next referred to politicization of the system. He said
that anybody who knows anything about the ABA knows it is not
Republican-led or Democrat-led; however, he thinks a political
philosophy permeates it and that a lot of attorneys are forced to
be members but are not represented by the bar association. Mr.
Will disagreed that the system isn't broken. He suggested that
people who had been through the court system, whether they had
prevailed or lost, would mostly say that the court system does not
run the way it should. Mr. Will concluded, "You have a problem
here, and I think that HJR 47 is an approach to solving the
problem, but I think it needs to be looked into a lot further. As
it stands now, I don't think that it should be put before the
voters. I think it should look into some of these other matters."
Number 2016
MARCI SCHMIDT, Parents United for Custodial Justice, testified via
teleconference from the Mat-Su LIO, specifying that the
organization is based out of Wasilla. She stated, "Currently we
are in support of HJR 47. We very much feel that the court system
is broken. A lot of people ... have come and told me their
stories, have shown me court documentation where judges view one
side only, without taking notice of the other side. We really feel
that judges should be trained ... with backgrounds in counseling
domestic violence and how to recognize the family (indisc.). This
particular bill is the start of something that could be wonderful."
MS. SCHMIDT said it is pretty much already a political arena. They
feel that members of the general public already believe that with
the bar involved, and with judges in general, it is political. She
stated, "But most of all, we really feel that we would like to be
involved in how to choose our judges, and hopefully that this can
be passed, and of course, as Mr. Will said, be looked into
further."
Number 2090
CHAIRMAN GREEN asked whether Carol Palmer wished to testify from
the Mat-Su LIO, but she indicated Ms. Schmidt had covered
everything for Parents United for Custodial Justice. He then
called on Joseph Henri, but he was no longer present at the
hearing.
Number 2103
MARK REGAN came forward to testify. He told members he is not an
officer in the Juneau Bar Association, but the resolution in
opposition, provided that day by Judge Stewart, had come from his
own word processor. Mr. Regan stated, "I have nothing to add to
that resolution except for one thing. And it may be a somewhat
dangerous thing to say, but if you are looking at the record of how
the system that you are thinking of changing worked in the past 35
years, and you tried to match up supreme court and court of appeals
appointments with the governors who appointed them, unless you had
all the background it would be a very difficult job."
MR. REGAN continued, "You simply can't look at who is on the court,
and who was on the court, and who appointed them, and come up with
any partisan pattern, really, at all. And there have been some
quite partisan governors in this state at different times. And the
process as it works now has managed to accomplish a system of
appointment where you really just can't tell who appointed who.
And that was something that the Juneau bar thought about
considerably, and it is our belief that the process works."
Number 2161
REPRESENTATIVE JAMES referred to testimony from the last couple of
testifiers and the assertion that the system is broken, saying she
is neither convinced it is broken nor working. Since being a
Representative the past six years, she has looked at court cases on
family issues including foster care, child abuse, and so forth. It
appears that the court has taken the position as presented by the
state, acting like a rubber stamp in many cases. Representative
James suggested that often that is probably as it should be.
However, review of cases has shown a disparity in the presentation
from one side to the other, and the court has usually coming down
on the side of the state. She requested a response, adding, "Tell
me it's not true."
Number 2215
MR. REGAN said he would answer on a personal level, indicating he
works for Alaska Legal Services and that the Juneau Bar Association
has no position on that. He stated, "I would say that, in fact,
the nonpartisan character of the reviewing court is something that
comes across when you're looking at how the Alaska Supreme Court
reviews child-in-need-of-aid [CINA] and custody decisions. You
have before you a whole series of important bills having to do with
how the child-in-need-of-aid system works, and changes in that.
Some of those respond to the fact that the Alaska Supreme Court has
not followed what the state wanted to do quite as much as lower
courts have. ... Those cases have come up for review, and the
Alaska Supreme Court has said, 'Well, this statute really doesn't
give the social workers the power to take a child in this
situation.' That's why you have this in front of you, and I think
it's an example of how the supreme court, in particular, does not
follow what the state wants perhaps as much as trial courts do."
Number 2260
REPRESENTATIVE JAMES referred to testimony that the system is
broken and that people have lost faith in the court system. She
said, "It's been my opinion that that is the case, but I'm not
convinced that this is the solution. And so, I don't know if
anyone has any other suggestion, but it seems like we do need to do
something to make the public feel more comfortable with the legal
system. Would you have any response on that issue?"
MR. REGAN noted that he was speaking for himself, then replied that
there is no more brutal experience for a parent to go through than
a custody case, whether it is a private custody case or one where
the state is involved. He explained, "I have clients whose lives
they feel have been destroyed by going through this process. The
sense that the judge who made a decision against you is a judge who
must be biased, and the process should be changed to put a
different judge on the bench -- it is a very hard thing to go
through the process, and people look for reasons why things didn't
go the way they wanted it to go. When they do that, it's a central
experience in their lives. They add things up, and they say,
'Well, there was a bias here,' or, 'I got done in by somebody who
was a political appointee.'"
MR. REGAN concluded, "There are good judges and bad judges. But I
think that the sense that something is wrong in the system is not
connected to who appoints judges and how judges get on the bench.
The system has enough ways to make mistakes and do wrong things and
be harsh with people, without blaming the wrong part of it for the
problem."
Number 2330
REPRESENTATIVE BERKOWITZ agreed it is a shattering experience,
particularly in CINA cases. However, it seems the problem that
losing litigants have is very different when it can be blamed on
incompetence in the judiciary, rather than possibly being ascribed
to partisanship. He suggested that moving in a way that might be
more partisan would probably undercut confidence in the judiciary
even more.
CHAIRMAN GREEN called on Scott Dahl in Anchorage next, but Mr. Dahl
had departed.
Number 2373
PAMELA BICKFORD testified via teleconference from Anchorage,
speaking in support of HJR 47. She said it is not so much that a
judge or potential judge would be selected on his views, but that
the process would offer an opportunity for the public to voice a
concern about a judge or his decision making that is not presently
available to the public. She said she realizes that retention is
brought up on a ballot on occasion. However, she believes there
needs to be a critique, correction, or removal of the political
bent described by some earlier testifiers, where judges may
interpret the law as they see it, rather than follow the law as
they are supposed to.
MS. BICKFORD told members it has been her unfortunate experience to
discover that the only correction of an improper decision is review
by a higher court. The cost to the court system and the litigants,
in time, money and energy, is extensive and prohibitive. Simple
cases fouled by an off-the-wall decision by a judge are abandoned
because of the extenuating circumstances, and the fair resolution
of the issues under dispute is never reached. Instructive
interpretation of the law is something that many litigants seek but
never find, Ms. Bickford said, mentioning the resulting bad law and
difficulty for litigants.
TAPE 98-22, SIDE B
Number 0006
MS. BICKFORD concluded with a suggestion that this go further and
include term limits. She indicated an attorney would then have to
return to practice and interpret his own decisions in the real
world.
Number 0027
KEN JACOBUS testified via teleconference from Anchorage. He said
six to eight people had left "because they couldn't afford to stay
here," and he thinks that virtually all of them support the
resolution. Mr. Jacobus said he strongly disagrees with a number
of things he had heard during testimony, the most important being
that the first person on the bar poll is best-qualified, with the
second being second-best-qualified, and so forth, so that if the
top candidate were rejected by the legislature, they would have to
go to unqualified candidates.
MR. JACOBUS stated, "This isn't true. In order to get a rating on
the bar poll, you go through a vote of the bar members. There's an
awful lot of back-room politics, which is conducted during the
course of this vote, for the purpose of securing the top one or two
positions on the ballot. ... It does show that the person is
qualified, but it does not show that the person is most-qualified
or second-most-qualified, because that depends upon the success of
the person or the person's supporters' campaign among the lawyers
to get the top vote."
Number 0089
MR. JACOBUS said this proposal doesn't change the selection process
except right at the end. The governor would make a recommendation,
and the legislature would act on it. He suggested there would be
two positive results. In addition to the the public input, the
governor would have to choose an appointee acceptable to the
legislature. If they are of opposite persuasions, a middle-road
candidate would have to be selected, resulting in a judge more
acceptable to Alaskans.
MR. JACOBUS suggested that if the applicants know the final
decision must be made by the governor and the legislature, there
will be more applicants. He stated, "For example, look at the
situation right now. If a judicial position came open I would not
apply for it because I know that Governor Knowles is not going to
appoint me. ... I've gone through the bar poll, through the
process. It's absolutely miserable. It's the last thing you want
to do in your entire life, all the stuff ... that's said about you,
everything that goes on. But ... if I knew that the legislature
and the governor made the decision, in essence, jointly, and that
... a nominee would have to be chosen by the governor who was
acceptable to the legislature, I very well might go through it."
MR. JACOBUS continued, "In any event, I think what you're going to
get is more candidates and better-qualified candidates, if they
know that the governor's appointment is not the final thing.
Republic governor: You're not going to get Democratic applicants.
Democratic governor: You're not going to Republican applicants."
He indicated there is much more he could say. He expressed that
this is a very important subject, noting that he has been a member
of the American Judicature Society for 25 years. Mr. Jacobus
further said he agrees with Ms. Bickford that term limits on judges
are crucial. He said there are a lot of judges in Anchorage who
were appointed young but who are now burned out and can't afford to
retire.
Number 0181
MR. JACOBUS read into the record written statements by two people
who'd had to leave the LIO. The first, from Wayne Anthony Ross,
said:
"Dear committee members: I came down to the legislative affairs
office to testify in favor of this resolution. There appeared to
be a lot of people waiting to testify, and I have a legal brief due
this afternoon that I need to finish. After waiting an hour, I
simply had to leave. For the record, I support this resolution.
I believe it allows greater public participation in the selection
process for judges. It does not take anything away from the bar
association. Instead, it will improve the judicial council's
deliberations because the council will have to realize that their
nominations will now be subject to legislative and public scrutiny.
I apologize again for not being able to stay for the entire
hearing. Wayne Anthony Ross, member of the Alaska bar since 1969,
practicing attorney for 30 years."
Number 0234
MR. JACOBUS next read a statement from Susan Fischetti, who had
identified herself for this purpose as being with the Alaska Small
Business Coalition, and who had indicated that four other members
had had to leave the hearing. Her statement read:
"I strongly support HJR 47. The system does not work well, and
it's time for a change. HJR 47 is fair and will help include the
public in the process. The public has the right to know and should
be able to vote on this issue. Susan Fischetti."
Number 0275
VICTOR FISCHER testified via teleconference from Anchorage,
advising the committee he had been a member of the Alaska
Constitutional Convention and had written a book about it; he had
also written numerous articles about the convention and the
constitution itself. Mr. Fischer expressed strong opposition to
HJR 47. He suggested that most of the things said in its favor
would argue for electing judges, or for having periodic re-election
of judges.
MR. FISCHER stated his belief that the proposal is technically not
workable. He doesn't believe that legislative confirmation would
bring in the public. It might bring in a few people, but it would
bring in politics, unquestionably, and the whole system was
designed to keep it isolated from partisan politics as much as
possible. Mr. Fischer stated, "I think the record of our judicial
system has been excellent from that standpoint. You can look at
appointments made by Democratic and Republican governors that have
stood up over time, especially when you look at the appellate and
the supreme court levels."
MR. FISCHER told members that technically, and in terms of style,
with all due respect to his friend John Cowdery, the drafting of
the proposed amendment is an inexcusable abomination. He stated,
"I have hardly ever seen anything this poorly drafted. This is not
constitutional language that is proposed. It's the worst of
legislative drafting." He suggested comparing it with the clear,
declaratory, positive, simple, straightforward, understandable
sentences contained in the article on the judiciary, including
Sections 1 through 5. He stated, "You don't have convoluted
language that just doesn't fit into constitutions."
Number 0395
MR. FISCHER said the only part of HJR 47 that is properly drafted
is Section 3, which is clean, understandable and "doesn't make a
mess." He told members he would say almost the same thing about
HJR 4, noting that he had signed up to testify on both resolutions.
He stated, "I think ... HJR 4 is not significant. I don't think
it's an important proposed amendment. I think it would tilt the
balance of the powers at the constitutional level somewhat from the
legislative to the executive, but not significantly." He said HJR
4 is another example of lousy drafting. He offered to work with
anyone that wants to, or to provide examples.
MR. FISCHER suggested the legislature should establish a drafting
process akin to what existed in the constitutional convention, to
get proposed amendments into proper shape, so that they fit into
the constitution, with constitutional language, and they don't
result in the hodge-podge that exists in HJR 47 "or in the
legislature-drafted amendment that became Section 16 and 17 of the
finance article, having to do with, as I remember, the expenditure
limit and ... the budget reserve account." He thanked the chairman
and offered to follow up.
Number 0472
REPRESENTATIVE COWDERY commented that there are good judges and bad
judges. "And if this bill is passed, I think there would be fewer
bad judges," he added.
MR. FISCHER responded, "I will challenge Mr. Cowdery to
specifically point out which of the supreme court justices - just
to take that example - ... would be considered a bad judge, or
which one of the appellate court judges you would consider not
acceptable."
CHAIRMAN GREEN suggested that would be a matter between Mr. Fischer
and Representative Cowdery in a different forum. He asked about
Mr. Fischer's offer to submit examples for the record.
MR. FISCHER said he would have the LIO fax his notes on HJR 4,
which are mainly to eliminate totally unnecessary language and
simplify the proposed amendment. He added, "HJR 47 is so deficient
in its drafting and construction that I think it would be very
difficult for me to have anything intelligible. I'd be glad to go
over it with somebody line by line."
REPRESENTATIVE BERKOWITZ replied, "Please don't turn your talents
to HJR 47."
CHAIRMAN GREEN thanked Mr. Fischer. [HJR 47 was held over.]
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