Legislature(1997 - 1998)
03/04/1998 01:10 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJR 47 - CONST AM: APPELLATE JUDGES Number 1570 CHAIRMAN GREEN announced the final item of business would be a revisit of 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 1578 REPRESENTATIVE JOHN COWDERY, sponsor of HJR 47, read portions of his letter to the committee dated March 3, 1998. He expressed the belief that HJR 47 is highly popular with the public, and he questioned the motives of Chief Justice Matthews in personally testifying against HJR 47 at the previous hearing. Representative Cowdery brought up Chief Justice Matthews' contention that legislative confirmation of judges will politicize the selection process; he said there is nothing inherently evil or untoward in politics, and he said the judiciary is the closest thing to royalty in our society. Number 1713 REPRESENTATIVE COWDERY told members that apparently the chief justice only recognizes politics as occurring in the legislative branch; he said Chief Justice Matthews admits to no political considerations being played out in the executive branch during Alaska's appointment process. He then asked whether, in the federal system, the White House doesn't look for judicial candidates who are philosophically compatible and supportive of that administration's precepts, and whether special interest groups, politicians and people of influence don't influence the selection of federal candidates. Representative Cowdery said the point is that politics does play a prominent role in the executive branch appointment process, which largely excludes public involvement until there is a nomination sent to the legislative branch. He suggested that public involvement is the step missing in Alaska's current system, which HJR 47 will remedy. Number 1806 REPRESENTATIVE COWDERY continued to read from his letter the sections relating to Chief Justice Matthews. Number 1848 REPRESENTATIVE BERKOWITZ objected to characterizations of what the chief justice is doing and aspersions about his motives; Representative Berkowitz said those are inappropriate. He stated, "And I respect Representative Cowdery for bringing this bill forward. If he has issues with the substance of what the chief justice has to say, I think we should hear them." Number 1883 CHAIRMAN GREEN said that point was well made. He asked Representative Cowdery to confine his comments to the facts rather than to possible motives. Number 1903 REPRESENTATIVE COWDERY continued talking about Chief Justice Matthews' appointment by Governor Hammond, saying the chief justice would have much less likely have been a candidate if his client list had included aggressive development interests instead of the Sahara [sic] Club. He stated, "His main benefactor for the appointment of the governor's administrative assistant ...." REPRESENTATIVE BERKOWITZ renewed his objection, saying this is not pertinent but is an ad hominem discussion of the chief justice. Number 1951 REPRESENTATIVE ROKEBERG replied that he didn't think it was out of order, because he had asked the chief justice that very question and believes it is germane to the bill. REPRESENTATIVE BERKOWITZ responded, "If we're going to get into why people were appointed or what their particular motives might be in this committee, I would suggest that we open a Pandora's box, because we're supposed to be discussing the substance of this proposal." CHAIRMAN GREEN said he would allow Representative Cowdery to continue, although it was treading a fine line, because while the chief justice had indicated there should be no politics involved, the sponsor is trying to show that politics exist even in the appointment of judges under the existing system. REPRESENTATIVE BERKOWITZ said Representative Cowdery is suggesting the chief justice is a hypocrite. CHAIRMAN GREEN said he himself isn't reading it that way. Number 2025 REPRESENTATIVE JAMES proposed that Representative Cowdery go ahead but make the testimony on thought and theory, rather than allude it to the chief justice. Number 2055 REPRESENTATIVE COWDERY stated, "The main benefactor in the appointment that Governor Hammond made, for the appointment, was the governor's administrative assistant, who was also a former law clerk." CHAIRMAN GREEN said they were trying not to be so specific. Number 2103 REPRESENTATIVE PORTER offered his firm opinion that Chief Justice Matthews would say Representative Cowdery has a perfect right, under the First Amendment, to say anything he wants to. He added, "We don't have to agree with him, and as a matter of fact, I don't. But I don't think we're serving any good purpose by interrupting the testimony. Just let him finish and get him done with." CHAIRMAN GREEN asked whether there was any other discussion of that point, then asked Representative Cowdery to continue. Number 2144 REPRESENTATIVE COWDERY stated, "As I was saying, the appointment had some basis with the former law partner of -- who was the governor's administrative assistant at the time. Some would say he had political connections. However, some of us would have to believe that politics is something that happens in the legislature's back yard, never in the governor's or the judiciary." REPRESENTATIVE COWDERY said the second argument employed against HJR 47 was that it could result in confirmation delays and bottleneck the court's work flow. He mentioned an example discussed at the previous hearing, where a person is appointed during May; if that person could not take office until after legislative confirmation, seven months later, it would prolong the vacancy and impede the court's productivity. Representative Cowdery said he thinks this argument is somewhat disingenuous, because it ignores the adaptability of people in organizations. With legislative confirmation in place, most resignations and retirement would simply schedule themselves around this legislative calendar. As a matter of administration efficiency, the court system could require a one-year notice for judgeships that require confirmation. REPRESENTATIVE COWDERY reminded members that a third argument against HJR 47 is that it would degrade the merit system now in place. He stated, "Nothing could be further from the truth. House Joint Resolution 47 maintains the current system in total. The judicial council and the bar association would still go through the same polling and grading processes. They would still interact with the governor in the same way as they do now. ... When all their work is done, and after the [governor] makes his decision, House Joint Resolution 47 simply gives the legislature and the public a role to play in the appointment process." Number 2321 REPRESENTATIVE COWDERY summarized by saying HJR 47 retains the existing merit system, adding public participation through the legislative forum, and it requires legislative approval of attorney members of the judicial council and judges for the court of appeals or the supreme court. Confirmation would result in appointees who are acceptable to a broader segment of the public than only the narrow constituency of the appointing authority. In effect, legislative confirmation adds a "whole man review" of the nominee's suitability for the appointment. "This is a proposition that we can recommend to the general election ballot for final determination by the voters of Alaska," he concluded. Number 2393 REPRESENTATIVE CROFT referred to the assertion that Chief Justice Matthews' decision to testify in person at the previous hearing was a political decision. He noted that the judiciary doesn't usually offer opinions on public policy issues discussed by the legislature, stating, "I've seen Chris Christensen, time and time again, say, 'We have no opinion on the merits of this; we can comment on what it'll do to the judiciary, how much it'll cost.' And that's the appropriate line that they continue to draw." Representative Croft pointed out that HJR 47 has a direct impact on the operation of the judiciary, and because it has such a fundamental impact is the reason Chief Justice Matthews was here. [Ends mid-speech because of tape change.] TAPE 98-30, SIDE A Number 0006 REPRESENTATIVE CROFT referred to problems in the federal system, where the executive has an open field to appoint, and he said Alaska has tried, through the merit system, to provide a limited number of pre-qualified candidates. "How the governor makes that final choice, I don't know," he said. "I suspect that there is an element in that of who you know, and who you're comfortable with. ... When I watched Governor Hickel appoint Justice Eastaugh, he mainly talked about how long he's known his family down in Juneau. It didn't seem particularly relevant. But I was comforted by the fact that it had gone through a rigorous public process where we knew Justice Eastaugh was qualified, whatever ... final decision was made in that regard." REPRESENTATIVE CROFT continued, "I'm still very concerned about the practical question I asked some days ago, and never got a satisfactory answer: If we put two names up, the governor picks one and that is rejected by the legislature, what do we do?" Number 0116 REPRESENTATIVE COWDERY responded that he had researched that, and the supreme court justice has the ability to fill a vacancy temporarily under the constitution now. Number 0170 REPRESENTATIVE CROFT noted that the person whom the legislature had failed to confirm would obviously be gone. He asked, "Does the other name go up, or do we start the process over again?" REPRESENTATIVE COWDERY replied that the constitution says two or more. "They could, if they thought there was going to be a problem, nominate as many as they wanted to pick from," he added. He said he doubted that people would throw their names in the hat and go through the rigorous debate if they didn't really, honestly feel they should be confirmed. Number 0224 REPRESENTATIVE CROFT said if that is true, they would have already politicized it one step before that. He said he still doesn't understand whether the governor would be forced to put that second name up or whether they would start again. REPRESENTATIVE COWDERY commented, "I believe if you had different groups of the judicial council, you would have different names up there. ... They wouldn't all necessarily pick the same one." He indicated he didn't know whether candidates were rated for quality or whether the names were just thrown in a hat for the governor to choose. He informed members that he had to leave, as he had another bill up in another committee. CHAIRMAN GREEN inquired whether there were any quick questions before Representative Cowdery left. He then asked Chris Christensen if he had anything to add. Number 0358 CHRIS CHRISTENSEN, Staff Counsel, Office of the Administrative Director, Alaska Court System, came forward to testify, specifying that he had received Representative Cowdery's letter only 15 minutes before. He said he believed Representative Cowdery had done a good job of hitting the high points of the letter. MR. CHRISTENSEN informed members that this was the first time, literally in decades, that not only the chief justice but any judge has actually shown up at a legislative committee to testify on a piece of legislation. He said he believes that indicates the importance the institution places on this particular piece of legislation. He noted that HJR 47 doesn't affect anyone currently on the bench, including Chief Justice Matthews. However, it would affect the institution in the long term. Number 0413 MR. CHRISTIANSEN told members that Representative Cowdery's letter to the committee is a mixture of arguments interspersed with personal attacks on the chief justice. He stated, "You all remember, about three weeks ago, I appeared before you on HJR 44, relating to reapportionment. And I said something then which I think I should repeat now, and that is when partisan politics is at issue, people are going to question your honor, and they're going to question your motives, for no other reason than they happen to disagree with you on an issue. And I think this letter makes that point probably better than I did three weeks ago. If this is the sort of thing that is circulated based on 15 minutes of testimony once in several decades, I have to wonder what will happen in the process when the names of lawyers are actually up in front of the legislature." Number 0478 REPRESENTATIVE ROKEBERG said, "When the chief justice was here last, ... we had a discussion somewhat in the committee about the philosophy of the Alaska Supreme Court, and he referred me to the Albany Law Review article, which he was kind enough to transmit to me, and I had a chance to read that." He recommended that members read the article, and he asked if Mr. Christensen had done so. MR. CHRISTENSEN affirmed that. Number 0550 REPRESENTATIVE ROKEBERG asked him to explain the gist of that article as it relates to the Alaska Supreme Court, its history, and so-called new judicial federalism. MR. CHRISTENSEN replied that he had read that article quite some time ago. REPRESENTATIVE ROKEBERG said, as he recalls, it was a state supreme court looking at its own state constitution first, rather than at the federal constitution unless that was in a superior position; he offered the opinion that it would tend to color the tenor of the particular state's court. He asked whether that is correct. Number 0610 MR. CHRISTENSEN said he thinks that is accurate, and he believes Alaska's supreme court has a history of looking not to what the federal government is doing but to Alaska's constitution and laws. That is very different from how many other supreme courts do it. He suggested, however, that it is how most Alaskans want it to be done. Mr. Christensen explained, "I think that the supreme court really, in that respect, reflects some of the prevailing social values we have in this state. The classic example of that is the supreme court subsistence decision, where they said, 'We don't have to listen to any federal court other than the U.S. Supreme Court; they haven't spoken on this issue; our constitution says' -- and so on. You've all read the opinion." Number 0661 REPRESENTATIVE JAMES agreed that is what Alaska's judges look at, and ought to look at. She commented on how often Alaskans have amended the constitution since statehood, and she noted the number of proposed amendments this year. She said it is a young constitution, with a lot of things missing, which leads to being more permissive than if there was more direction there. She expressed support for the constitution, in all its details, but said there is some merit to additional amendments. Number 0727 REPRESENTATIVE BERKOWITZ read from the last paragraph of the law review article, "From the foregoing examination of divided state constitutional cases, it is clear that the Alaska Supreme Court is quite independent. Whether utilizing a primary, interstitial or dual-reliance approach to state constitutional adjudication, the court's decisions are not tied to federal precedent." He said it discussed some of the new justices, then further read, "Given the independent and free-spirited character of the state of Alaska, the Alaska Supreme Court is likely to remain true to its enduring, autonomous style of decision making." REPRESENTATIVE BERKOWITZ said he believes that is the strongest argument they could have to leave it alone. He emphasized the importance of having the institution and its independence endure, noting that opinions ebb and flow. He suggested HJR 47 attacks the very fundamental independence of the court. "And we ought to do everything we can to protect that independence," he concluded. Number 0848 REPRESENTATIVE ROKEBERG referred to a couple of cases he had read relating to a so-called sliding scale test of constitutional rights. He asked whether that is the correct term of art. MR. CHRISTENSEN said he is not a constitutional law expert. REPRESENTATIVE ROKEBERG said he understands that Alaska's supreme court has an unusual test, in which there are gradations of constitutionality, with a sliding scale of different types of hurdles must be reached for certain types of circumstances, cases and situations. He said he isn't certain how it works, but that he believes it adds to the complexity of the judiciary in Alaska. Number 0948 REPRESENTATIVE CROFT asked whether anyone else was scheduled to speak. CHAIRMAN GREEN said no. REPRESENTATIVE CROFT told members, "To the extent that this renewed interest in this bill, or the continued interest in this bill, is a reaction to very recent cases that have come out of the Alaska Supreme Court, if we have potential judicial candidates up before this body, before the House as a whole, and ask them, 'How do you feel about gay marriages,' they should answer, 'I haven't seen the briefing, I don't know the facts, I haven't seen the arguments; ... I cannot answer that question.'" REPRESENTATIVE CROFT continued, "They would not be uncooperative. In fact, that would be the only answer they could give: 'I'm not going to prejudge the range of issues that you're concerned about; it would be irresponsible to go off, without having some briefing on the history, the facts, and the particular circumstances in which it arises.' They should say, 'I can't answer that.' The principled ones do on the federal level. We've largely created a process where their history is open, but they're judged on their merits. And to put them through simply a political wringer, I don't think is going to achieve the result Representative Cowdery wants; I don't think his result is the right one, even if it did." Number 1031 REPRESENTATIVE ROKEBERG referred to previous mention of the chronic problem in Congress with the timely confirmation of judges. He said he had looked into this, and to his belief, there are approximately 86 vacancies on the federal bench but only 42 nominations in the Senate. He then expressed his belief that the chief justice had every right, and indeed a responsibility, to speak to the committee on this. He said he has known Chief Justice Matthews personally over 25 years, and that he is an extremely kind gentleman, an excellent citizen of Alaska, and an excellent judge. He noted that the Albany Law Review article assigns Chief Justice Matthews as the "most conservative of all judges in the state of Alaska." REPRESENTATIVE ROKEBERG took exception to Representative Croft's conclusions about that article, suggesting it is all the more reason to ensure that those judges have had "advice, consent and review by the legislative branch" before they are appointed, which he believes is extremely important. He also disagreed with Representative Croft that anyone being grilled for a confirmation hearing should not speak to his or her particular viewpoint on an issue. He said there has been a lot of discussion of this on the federal level, and he believes it is appropriate to seek a person's philosophy, mind and temperament as a judge. He said he doesn't have a problem with that on the record, and he is going to vote for this resolution. Number 1233 REPRESENTATIVE PORTER mentioned another bill on this same topic or something related, discussed in the House Finance Committee the previous day. He then stated, "If we confirmed appointments to the appellate bench, and brought them in, and asked them questions that were important in our minds, and probably if it were today, homosexuality would come up. The answer that Representative Croft offered would, to me, be the answer that any prudent candidate for ... one of those positions would give. But of course, we're clever, and so we'd get around that by saying, 'Well, okay, but we don't care about the case, we want to know what you think about homosexuality. Now, what do you think about it?' And he or she would perhaps have to get pushed into a corner of saying what they think about it." REPRESENTATIVE PORTER continued, "And I guess the question is, 'So what?' That kind of position is the position that we ask folks - and I happen to have been in one for a long time - to set aside what they personally think and go to work and make their decisions based on their profession and based on the law. So I don't, quite frankly, give a damn what they think about homosexuality. I want to know if they're qualified to go through the process of coming up with a decision that is intellectual, current and legal." Number 1350 REPRESENTATIVE PORTER continued, "Yes, we have decisions that drive me crazy, that are far afield from some other state's thinking or some other appellate court's thinking. But at the same time, we haven't - to my knowledge - ever had one that was based on anything but a very, very astutely thought out point of view that I happen to disagree with. And I can tell you, in systems where we have elected judges or politically influence judicial appointments, you can get a hell of a lot of other reasons for individual decisions." REPRESENTATIVE PORTER continued, "I personally have got quite mixed emotions about homosexuality, but as chief of police, I had to furnish officers to escort the first gay rights parade in Anchorage. I actually had about 3-to-2, officers over participants. But regardless of how I or any of those other officers felt about that particular parade or the participants, it was a requirement to provide public safety. It is a requirement of the court to provide interpretation of the law and decisions when their responsibility calls for it. And I'd like that to be a professional process, not a political process. So I can't support this." Number 1435 CHAIRMAN GREEN told members he thinks Representative Croft and Representative Porter make compelling arguments. He said he sensed HJR 47 probably wouldn't pass out of committee now, and he would like to think about it a little more. Number 1435 REPRESENTATIVE JAMES said she might as well bare her soul, too, then stated, "I have a lot of concern with this bill. But ... my concern is probably even different than what any of you have said. It's because I've been watching this legislative process, and I've been watching ... the bills that we have before us that are really popular with the public. And Representative Cowdery said ... the more hearings he had, the more support he could get for that. And I've always been a really big supporter of the people's right; this is a people's government. ... The people are the government. But, by golly, you need to have some leadership. And if you let the people make all the decisions of where you're going to go, they're going to go in a ditch. And if we don't be sure that they get the right things to vote on, we're abrogating our responsibility as representatives. So, no matter how popular that an issue is with the public - and I know this is popular ... with the public, and I'll probably have some people in my district that say, 'Gosh, what's the matter with you? Aren't you thinking?' - but somehow or other, we have more information, we are more in tune with the issues. And I think it is our responsibility to show leadership and not defer to public opinion all the time. There's times when you do, but there's times when you don't. I think this is one of the times you don't." [HJR 47 was held over.]
| Document Name | Date/Time | Subjects |
|---|