03/07/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB255 | |
| HJR33 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 127 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HJR 33 | TELECONFERENCED | |
| += | HB 255 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 7, 2014
1:12 p.m.
DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Bob Lynn, Vice Chair
Representative Neal Foster
Representative Lance Pruitt
Representative Max Gruenberg
Representative Gabrielle LeDoux
MEMBERS ABSENT
Representative Charisse Millett
COMMITTEE CALENDAR
HOUSE BILL NO. 255
"An Act relating to unmanned aircraft systems; and relating to
images captured by an unmanned aircraft system."
- MOVED CSHB 255(JUD) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 33
Proposing amendments to the Constitution of the State of Alaska
to increase the number of members on the judicial council and
relating to the initial terms of new members appointed to the
judicial council.
- HEARD & HELD
HOUSE BILL NO. 127
"An Act clarifying that the Alaska Bar Association is an agency
for purposes of investigations by the ombudsman; relating to
compensation of the ombudsman and to employment of staff by the
ombudsman under personal service contracts; providing that
certain records of communications between the ombudsman and an
agency are not public records; relating to disclosure by an
agency to the ombudsman of communications subject to attorney-
client and attorney work-product privileges; relating to
informal and formal reports of opinions and recommendations
issued by the ombudsman; relating to the privilege of the
ombudsman not to testify and creating a privilege under which
the ombudsman is not required to disclose certain documents;
relating to procedures for procurement by the ombudsman;
relating to the definition of 'agency' for purposes of the
Ombudsman Act and providing jurisdiction of the ombudsman over
persons providing certain services to the state by contract; and
amending Rules 501 and 503, Alaska Rules of Evidence."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 255
SHORT TITLE: UNMANNED AIRCRAFT SYSTEMS
SPONSOR(s): REPRESENTATIVE(s) HUGHES, HIGGINS, THOMPSON, PRUITT
01/21/14 (H) PREFILE RELEASED 1/17/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) STA, JUD
01/28/14 (H) STA AT 8:00 AM CAPITOL 106
01/28/14 (H) Heard & Held
01/28/14 (H) MINUTE(STA)
02/04/14 (H) STA AT 8:00 AM CAPITOL 106
02/04/14 (H) Moved CSHB 255(STA) Out of Committee
02/04/14 (H) MINUTE(STA)
02/05/14 (H) STA RPT CS(STA) 3DP 4NR
02/05/14 (H) DP: ISAACSON, KREISS-TOMKINS, HUGHES
02/05/14 (H) NR: MILLETT, GATTIS, KELLER, LYNN
02/12/14 (H) JUD AT 1:00 PM CAPITOL 120
02/12/14 (H) Heard & Held
02/12/14 (H) MINUTE(JUD)
03/05/14 (H) JUD AT 1:00 PM CAPITOL 120
03/05/14 (H) Scheduled But Not Heard
03/07/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 33
SHORT TITLE: CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
SPONSOR(s): JUDICIARY
02/28/14 (H) READ THE FIRST TIME - REFERRALS
02/28/14 (H) JUD, FIN
03/05/14 (H) JUD AT 1:00 PM CAPITOL 120
03/05/14 (H) Heard & Held
03/05/14 (H) MINUTE(JUD)
03/07/14 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE SHELLEY HUGHES
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as one of the prime sponsors of
HB 255.
GINGER BLAISDELL, Staff
Representative Shelley Hughes
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Speaking on behalf of Representative
Shelley Hughes, one of the joint prime sponsors of HB 255,
answered questions.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During the hearing of HB 255, answered
questions.
ERNEST PRAX, Staff
Representative Wes Keller
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Speaking as staff to the House Judiciary
Standing Committee, which Representative Wes Keller chairs,
explained changes embodied in CSHJR 33, Version U.
WALTER L. CARPENETI
Juneau, Alaska
POSITION STATEMENT: Expressed concern with HJR 33.
ROBERT FLINT
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HJR 33.
KEVIN FITZGERALD
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HJR 33, testified
that the merit system process in Alaska is the gold standard.
MICHAEL PAULEY
Alaska Family Action (AFA)
Seattle, Washington
POSITION STATEMENT: Testified in support of HJR 33.
ELEANOR ANDREWS
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HJR 33, testified
that the existing system works.
BILL GORDON
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to HJR 33.
FRITZ PETTYJOHN
Standard, California
POSITION STATEMENT: Testified in support of HJR 33.
MIKE COONS
Palmer, Alaska
POSITION STATEMENT: Testified in support of HJR 33.
NANCY MEADE, General Counsel
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HJR 33.
SUZANNE DiPIETRO, Executive Director
Alaska Judicial Council
Juneau, Alaska
POSITION STATEMENT: Testified regarding her role as Executive
Director of the Alaska Judicial Council.
KEN FISCHER
Juneau, Alaska
POSITION STATEMENT: Testified in support of HJR 33.
ACTION NARRATIVE
1:12:05 PM
CHAIR WES KELLER called the House Judiciary Standing Committee
meeting to order at 1:12 p.m. Representatives Lynn, Foster,
Pruitt, Gruenberg, LeDoux, and Keller were present at the call
to order. Representative Millett arrived as the meeting was in
progress.
HB 255-UNMANNED AIRCRAFT SYSTEMS
CHAIR KELLER announced that the first order of business is HB
255. "An Act relating to unmanned aircraft systems; and relating
to images captured by an unmanned aircraft system." [Before the
committee is CSHB 255(STA).]
1:12:26 PM
REPRESENTATIVE LYNN moved to adopt proposed CSHB 255 Version 28-
LS1068\P, Strasbaugh, 3/4/14 as the working document.
1:12:55 PM
REPRESENTATIVE GRUENBERG objected.
1:12:59 PM
REPRESENTATIVE SHELLEY HUGHES, Alaska State Legislature, on of
the joint prime sponsors, stated there are two concerns
addressed [in Version P] The first concern was expressed by the
statewide archivist regarding how images no longer required
would be handled. The second concern addressed in Version P is
regarding unmanned aircraft used in search and rescue, but not
necessarily involved in criminal activities. This change
respects the importance of privacy and abides by the Alaska
State Constitution and U.S. Constitution, she offered.
1:14:08 PM
GINGER BLAISDELL, Staff, Representative Shelley Hughes, Alaska
State Legislature, speaking on behalf of Representative Hughes,
one of the joint prime sponsors, stated that [Version O] page 2,
lines 26-27, originally read "A law enforcement agency may use
an unmanned aircraft system to gather evidence in a criminal
investigation." The sponsors' intent in [Version P] is in the
event a search and rescue event turns into a criminal
investigation that it be admissible in court. The language on
page 3, lines 2-5, is regarding a law enforcement agency using
information gathered by an unmanned aircraft system while
enforcing personal privacy. She explained the main intent of
the Unmanned Aircraft Systems Legislative Task Force ("Task
Force") is to guard personal privacy and allow law enforcement
agencies to use unmanned aircraft systems as a tool. Version P
also addresses the concern of the statewide archivist [Dean
Dawson] regarding existing state law and the requirement to
retain images. For law enforcement purposes, Version P
specifically identifies that images may not be retained without
a law enforcement purpose to keep them. There are a number of
existing laws regarding law enforcement's custody of retained
images that explain the retention length and how the images are
to be retained. House Bill 255 instructs law enforcement to
dispose of images when performing training runs or a completed
search and rescue event.
1:16:37 PM
REPRESENTATIVE PRUITT assumed law enforcement would require only
the [images] relevant to its investigation. He questioned the
specific amount of time images not relevant to its investigation
remain in law enforcement's custody.
MS.BLAISDELL deferred to Anne Carpeneti, Assistant Attorney
General, as she is familiar with various scenarios, lengths of
time, and the type of data required to be retained.
1:18:01 PM
REPRESENTATIVE GRUENBERG directed attention to the language [in
Version P] on page 2, line 28, "to gather evidence in a criminal
investigation" and contrast it with the language on page 3,
lines 2-3, which read, "... for uses not involving a criminal
investigation and not intended to lead to the production of
evidence for use in a criminal investigation, ..." He pointed
out that technically there may be a loop hole and suggested the
language might also include on page 2, line 28, the phrase "to
gather evidence in a criminal investigation or intended to lead
to the production of evidence for use in a criminal
investigation" since [proposed A.S. 18.65.903(a)] (3) breaks it
out. He suggested to both Ms. Blaisdell and Ms. Carpeneti that
the language could potentially lead to a misinterpretation.
MS. BLAISDELL responded that the change from [CASB 255(STA)] to
"only able to be used for a criminal investigation," to the
change in [Version P] is for law enforcement's use which allows
it to be used for a general public purpose as well as a criminal
investigation. The language in Version P, page 2, line 28,
discusses the use of a warrant in a criminal investigation. The
language on page 3, [lines 2-5], (2) discusses situations and
uses not specifically involving a criminal investigation, such
as search and rescue, Amber alert, bomb squad type of use, and a
variety of issues, she explained.
1:21:26 PM
REPRESENTATIVE HUGHES surmised that Representative Gruenberg was
referring to a [search and rescue event] that turned criminal.
REPRESENTATIVE GRUENBERG clarified that he is referring to the
time before an event turned into an investigation. He advised
it was a technical question.
REPRESENTATIVE HUGHES pointed out that the language on [pages 2-
3], line 31 [and line 1, respectively], "[B]] in accordance with
the judicially recognized exemption to the warrant requirement
in AS 12:35; ..." would cover search and rescue events that
become evidential for a criminal investigation. She reiterated
that subparagraph (B) on [Page 2], line 31, would cover those
situations and questioned if that was what Representative
Gruenberg was referring to.
REPRESENTATIVE GRUENBERG responded that her comments would
normally be the case, but because the language is broken out in
[page 3, lines 4-5] there is a situation that has not yet and
never does ultimately turn into a criminal investigation. He
reiterated that this is a technical question.
REPRESENTATIVE HUGHES noted that the aforementioned language on
page 3, line [3], read "not intended to lead to the production
of evidence ..." However, she stated that was not the original
intent, but it actually could lead to [evidence].
REPRESENTATIVE GRUENBERG responded that there could be a
situation that falls between the cracks in which something was
intended to lead to the production of evidence for use in a
criminal investigation. He expressed the need to avoid an
unintended loop hole.
1:24: 21 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), said the
Department of Law is concerned that there is not a gap in law
enforcement's ability to gather evidence in cases in which it is
fair and not a violation of privacy. The desire was for law
enforcement to be able to use images obtain from drones in a
non-criminal investigation such as locating a lost individual on
a search and rescue mission, when the situation turns out to be
a crime scene. Law enforcement wants to be able to use those
photographs in the prosecution of the defendant as and there is
certainly no reasonable expectation of privacy in that
situation. She related her understanding that is the reason
paragraph (2) [on page 3, lines 2-5] was drafted. If there are
any gaps, she expressed the need to address them.
1:26:07 PM
REPRESENTATIVE GRUENBERG suggested that analytically the
language may lead to situations that do not technically fall
under one or the other scenarios. He further suggested the cure
may be to add language on [page 2,] line 28, such that paragraph
(1) would read "to gather evidence in a criminal investigation
or intended to lead to the production of evidence for use in a
criminal investigation." He explained it is similar to the
broader discovery rules in civil cases wherein a party may ask
for the production of evidence for use in the trial or evidence
that could lead to the production of evidence in a criminal
trial. This is a discovery situation and civil rules are
specifically designed so there is no gap, he opined.
MS. CARPENETI said although she thinks Representative
Gruenberg's suggested language is unnecessary, she will conduct
further research and can work with the sponsor.
CHAIR KELLER advised subsequent to Ms. Carpeneti's review any
technical change could be conducted on the House floor
REPRESENTATIVE LYNN questioned whether the inclusion of
Representative Gruenberg's language would cause any harm.
MS. CARPENETI responded that she did not believe it would cause
harm, but reiterated the language is unnecessary.
REPRESENTATIVE HUGHES offered to work with Ms. Carpeneti and if
the language is necessary it could be changed in the House Rules
Standing Committee. The Task Force does not want anything
slipping through the cracks, she opined.
1:29:54 PM
MS. CARPENETI, responding to Representative Pruitt's earlier
question, stated that the language in HB 255 has a reasonable
expectation of privacy under circumstances in which footage is
not used as it is not relevant to any criminal prosecution.
1:30:42 PM
REPRESENTATIVE PRUITT related his intention is that the footage
applies to the specific purpose for which the drone is intended
at that time. Otherwise, he expressed concern about putting
drones in the air to see if they capture images of anything
[criminal].
MS. CARPENETI responded that the focus of the Task Force is to
adopt rules that protect privacy while at the same time allow
these instruments of the future usable for [law enforcement]
when necessary.
REPRESENTATIVE PRUITT remarked that the retention piece is part
of the whole discussion in how long [law enforcement retains
data] as his concern is the time frame each of those images are
retained.
1:32:17 PM
REPRESENTATIVE LYNN inquired as to the difference between a
drone taking photographs from above and a security camera at
street level. He further inquired as to how long images from a
security camera on the street are retained.
MS. CARPENETI replied that the difference is that someone
walking down the street has less expectation of privacy than a
person at a remote cabin where there are no roads and a higher
expectation of privacy exists. Essentially, she said it depends
upon the facts and what citizens expect when performing certain
acts, as most people do not expect to be private while walking
down a street.
REPRESENTATIVE HUGHES related her understanding that images
taken with a public security camera on state buildings are
retained for 30-days. She advised that Alaska has high powered
cameras that can be attached to an unmanned aircraft, a car and
a person could carry it. The Task Force understands the
potential privacy issues and is always considering the privacy
aspect. Moreover, the Task Force realizes that the legislation
should be somewhat neutral as far as the tool because the
operator of the tool and the state must be certain the operator
is doing the right thing, no matter to what the camera is
attached. She explained that the Task Force's amendment is that
if the images are not needed that they are considered
confidential and not part of public record. She assumed the law
enforcement agencies would dispose of them immediately.
REPRESENTATIVE LYNN highlighted his overall concern that the
focus is on [the unmanned aircraft system] while there are
security cameras everywhere. He opined that he does not have an
expectation of privacy much anymore.
REPRESENTATIVE PRUITT, regarding Ms. Carpeneti's comments about
the cabin scenario, said they apply in a residential situation
also. If drones are flying over residential areas, a person in
his/her back yard should have the same expectation of privacy as
at a cabin.
1:36:50 PM
REPRESENTATIVE GRUENBERG questioned, in reference to page 2,
lines 29-30, whether a search warrant that is not issued
pursuant to state law, but issued pursuant to a federal order
should read "(A) under the express terms of a search warrant
issued under court order," rather than "AS 12.35."
MS. CARPENETI responded that Representative Gruenberg's
suggestion was excellent and one with which she completely
concurred.
1:37:51 PM
REPRESENTATIVE GRUENBERG referred to the language on pages 2-3,
lines 31 and l, respectively, "(B) in accordance with a
judicially recognized exception to the warrant requirement in AS
12.35." [The warrant] may be judicially recognized,
particularly if it is a federal warrant issued under an
exception under federal law. He expressed concern that Alaska
may have a judicially recognized exception that has never been
ruled on, but would be judicially recognized elsewhere. For
example, there could be a scenario wherein a smart lawyer
alleging "this" is judicially recognized in Nebraska and 43
other states, but has not arisen in Alaska. Therefore, he
suggested the language should not cite just the one statute [AS
12.35], but should say "recognized under law."
MS. CARPENETI responded it would be best to leave it under state
law as under federal search and seizure law there is a good
faith exception to the warrant requirement and she did not know
if Alaska's court had adopted it yet. The [use of an unmanned
aircraft system by a law enforcement agency] would be best tied
to judicially recognized exceptions under state law, she
remarked.
1:41:00 PM
REPRESENTATIVE GRUENBERG suggested a conceptual amendment in
which on page 2, lines 29-30, the language "... AS 12.35" would
be replace with the following language "... a valid court
order."
MS. CARPENETI responded that although it is difficult for her to
imagine Alaska going to another court to obtain a court order to
allow Alaska to perform drone surveillance, a court order is
fine because it is more general. At the same time, she related
the preference to limit the judicially recognized exceptions to
state law exceptions.
1:42:43 PM
REPRESENTATIVE GRUENBERG questioned Ms. Carpeneti as to whether
she had any problem with the committee substitute.
MS. CARPENETI responded no, noting that she has had been an
excellent working relationship with the sponsor and her staff.
1:43:05 PM
REPRESENTATIVE GRUENBERG removed his objection to adopting CSHB
255, Version P. There being no further objection, Version P was
before the committee.
CHAIR KELLER closed public testimony and stated CSHJR 33(JUD)
Version P is before the committee for discussion.
1:44:04 PM
REPRESENTATIVE GRUENBERG moved Conceptual Amendment 1, as
follows:
Page 2, line 30
Delete "AS 12.35"
Insert "court order"
1:44:32 PM
CHAIR KELLER objected and requested that the sponsor work with
DOL in the event there is a problem with the language of
Conceptual Amendment 1. Chair Keller then removed his
objection. There being no further objection, Conceptual
Amendment 1 was adopted.
1:45:07 PM
REPRESENTATIVE LYNN move to report CSHB 255 (JUD), 28-LS1068\P,
Strasbaugh, 3/4/14, as amended, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no further objection CSHB 255(JUD) was reported from the House
Judiciary Standing Committee.
1:45:26 PM
The committee took an at ease from 1:45 p.m. to 1:48 p.m.
HJR 33-CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
1:48:13 PM
CHAIR KELLER announced that the final order of business would be
HJR 33, "Proposing amendments to the Constitution of the State
of Alaska to increase the number of members on the judicial
council and relating to the initial terms of new members
appointed to the judicial council."
1:48:51 PM
ERNEST PRAX, Staff, Representative Wes Keller, Alaska State
Legislature, speaking as staff to the House Judiciary Standing
Committee, which Representative Wes Keller chairs, explained
changes embodied in CSHJR 33, Version U and stated that the
committee substitute, labeled Version 28-LS1509\U, Wallace,
3/3/14, requires that all member appointments of the Alaska
Judicial Council (AJC) be confirmed by the legislature. He
further explained that given that the total voting membership
would increase to nine members, the AJC will take action with
the concurrence of five or more members. Those are the only two
changes, he remarked.
1:49:53 PM
REPRESENTATIVE LYNN moved to adopt proposed committee substitute
(CS) for HJR 33, Version 28-LS1509\U, Wallace, 3/3/14, as the
working document.
CHAIR KELLER objected.
1:50:26 PM
CHAIR KELLER advised he is in receipt of an email from the
Alaska Court System with which he is "appalled and frustrated"
because it seems to indicate there has been a recruiting process
for testimony against HJR 33, which he characterized as a bit
political since the committee is discussing "a situation that is
not supposed to be there." Chair Keller expressed frustration
and pointed out that the judiciary's role is to interpret and
apply laws the legislators write. Although the courts have been
very good terms of working with this committee, he said he is at
a loss how the addition of three non-attorney members to the AJC
is so earthshaking for the courts that it chooses to get
involved.
1:53:07 PM
REPRESENTATIVE GRUENBERG requested that at the appropriate time
he would like the opportunity to respond to Chair Keller's
comments regarding the email and as a member of the other party
hoped he would receive an equal opportunity to state his views.
1:53:40 PM
CHAIR KELLER advised Representative Gruenberg would have an
opportunity to respond. He then refreshed the committee's
memory that at the last hearing the last question Mr. Carpeneti
was asked by Representative Lynn is the potential conflict of
interest issue in HJR 33 to which Mr. Carpeneti had responded
that he did not see the conflict. Chair Keller noted he had
reviewed the AJC rules and the conflict of interest issue is
addressed. He opined that legislators are very sensitive to
what a conflict of interest is because often they don't even see
it coming and get confused. He further opined that HJR 33 is an
attempt to ease that potential dilemma.
1:56:09 PM
WALTER L. CARPENETI stated he is representing himself, not the
Alaska Court System. With regard to Chair Keller's concern
about an email, he advised he had not spoken with any of the
members of the Alaska Court System, but has been told that it is
against HJR 33 as it uniquely affects judicial operations. He
added he is no longer performing pro tem, is not a judge. With
regard to conflict of interest, judges have to fill out those
forms also. The critical component of a conflict of interest,
he emphasized, is to define what it is. He reiterated from his
previous testimonies that he does not know what the conflict is
in a judicial officer in rare occasions, 15 times in the last 30
years, casting a vote as to whether a person meets the standards
that the framers set out in the Alaska State Constitution and
amplified in the bylaws to be on the court. He recalled the
comment that since he is a judge and a judicial officer and some
of the applicants are judicial officers, he is placed in a
position conflict. However, Mr. Carpeneti pointed out that for
a living, appellate judges review lower court judges' decisions
to decide whether they're right or wrong. He further reiterated
he could not see a conflict in a judicial officer applying a
standard to a particular situation and deciding that the
standard is met or is not met.
1:58:13 PM
MR. CARPENETI, regarding questions at the last hearing about
whether there are problems in the federal system, opined that if
he had to put the history of the federal system up against the
history of the Alaska system in [in terms of corruption], there
is no question the Alaska system would be the hands down winner
as Alaska has none of those things in its history. Furthermore,
the Alaska system is much more transparent than the federal
system as the AJC's work is largely open to the public,
interviews can be open if the candidates agree, results of the
bar poll are open, the process is open, and the votes themselves
are open as the public has the opportunity to read how each AJC
member voted. On the other hand, the federal system is
virtually a non-transparent system. He explained that in 1952
or 1953, President Eisenhower asked the [American] Bar
Association to rate candidates and did so because President
Eisenhower said he wanted to lessen the political influence in
the selection process and introduce merit into it. Every
president up until the second President Bush followed the
procedure of determining a list of potential nominees forwarding
the list to the American Bar Association Standards Review
Committee on the Federal Judiciary, for review and determination
whether the applicant is not qualified, qualified, or well
qualified. The aforementioned played a very important role in
how that nominee was rated. There is important lawyer
involvement in both the federal and the Alaska system, he
remarked. Mr. Carpeneti maintained that the Alaska system is
better than the federal system.
2:01:24 PM
REPRESENTATIVE LYNN posed a scenario with the AJC wherein there
is a tie vote which requires the Chief Justice's vote to break
the tie, except the Chief Justice has an actual conflict of
interest and cannot vote.
MR. CARPENETI responded that he did not know the answer to the
question and stated he would have to look at the bylaws before
answering definitively.
REPRESENTATIVE LYNN noted that in legislative amendment
situations when there is a conflict of interest by a member
which causes a tie vote, the amendment fails.
MR. CARPENETI said that although he did not believe that had
ever happened in the AJC's history, he did not know the answer.
2:02:43 PM
REPRESENTATIVE GRUENBERG asked Mr. Carpeneti if he had attempted
to respond to Chair Keller's comments regarding the email from
the court system.
MR. CARPENETI clarified he was simply making his position clear
in that he is representing himself, although his understanding
is that the Supreme Court's position is that it opposes HJR 33.
He noted it is fairly rare for the Supreme Court to advise [its
position] although it sometimes does. In fact, the Model Code
of Judicial Conduct for judges essentially says that judges are
not too be involved in issues unless they involve the
administration of justice, which he assumed is the basis for its
position.
2:03:51 PM
REPRESENTATIVE GRUENBERG remarked that Mr. Carpeneti is almost
an expert witness because he was the Chief Justice of the
Supreme Court of Alaska and on the courts for many years.
Representative Gruenberg related his understanding that the
"Model Code of Judicial Conduct: Canon 5 Commentary" in Section
A (1), specifies judges should be able to take part in the
public debate over proposals to change the legal system or the
administration of justice and that incumbent judges can engage
in political activity on behalf of measures to improve the law,
the legal system, or the administration of justice. He inquired
as to Mr. Carpeneti's understanding of Canon 5, and how the
issue [of judicial conduct] is covered, and the role of the
Alaska Commission on Judicial Conduct as [it] would be the place
to address any potential violation of the Model Code of Judicial
Conduct.
MR. CARPENETI, reiterated that he had speculated the Alaska
Court System took its current position under the umbrella of
[Canon 5]. He expressed that he is not concerned with the
Supreme Court's position on a matter affecting the
administration of justice and further expressed that the
[Supreme Court's position] would not give rise to concerns about
a referral to the Alaska Commission on Judicial Conduct.
2:06:44 PM
REPRESENTATIVE PRUITT, recalling Mr. Carpeneti's concern in
potentially giving the governor authority to steer the direction
of the judiciary, questioned whether judiciary members are
immune from a bias.
MR. CARPENETI responded no, adding that everyone has a bias.
2:07:52 PM
REPRESENTATIVE PRUITT questioned whether the judiciary should
have the same values or potentially the same mind-set as the
citizens of Alaska.
MR. CARPENETI responded that members of the judiciary should
share basic values with the citizens of Alaska in terms of
respect for the rule of law, respect for giving each side an
opportunity to be heard, respect for not having specific
positions with regard to an outcome of a case, he explained.
Being human, judges must set aside any particular
predisposition, and [review], listen to the law, compare it with
the facts, and reach a decision, which is exactly what judges
ask jurors to do every day. When judges are not doing fact
finding, they are analyzing an ambiguous statute the legislature
passed to [decipher] how [the case] should come out, which is
where judges set aside their predispositions. He stressed that
as a judge every day of his life, especially as a trial judge,
he made decisions he would not have made had he been in the
legislature writing the statute. Although the system is that
judges follow laws received from various other sources, judges
do not come to the bench as a blank slate but as a person having
lived a life. When it comes to judging, the state wants
[judges] who are willing to identify their own biases, to the
extent that any of us can, and consciously put them aside to
decide on the facts of the law. Mr. Carpeneti expressed concern
with a system that authorizes one person, the governor, the
right to name a majority of the members of the AJC as it could
potentially lose the impetus to send names of applicants to the
governor that meet that aforementioned standard.
2:10:31 PM
REPRESENTATIVE PRUITT questioned why the AJC members from the
Alaska Bar Association have the ability to set aside any
predispositions [better than] the governor.
2:11:25 PM
MR. CARPENETI clarified that he was not saying the that the four
[AJC attorney members are better at setting aside
predispositions] but rather that a balance is maintained so that
no one individual, the governor, has the power to name the
individuals who determine which candidates go to that governor
for appointment. Although he conceded there is a theoretical
possibility in the current system for an individual to narrowly
define interest groups in terms of attorneys versus non-
attorneys, he opined that it's a false distinction. Of over
1,100 votes, 15 times the votes have been tied of which 5 times
the Chief Justice ruled with the non-attorney and 10 times with
the attorneys. He opined that is a remarkable record of non-
occurrence and an insignificant number. He concluded that HJR
33 proposes to [change] a system that has worked very well to
address the theoretical problem of four lawyers being able to
dominate three non-lawyers.
2:13:38 PM
The committee took a brief at-ease.
2:14:45 PM
ROBERT FLINT, speaking as a retired Anchorage attorney, related
his support for HJR 33 and adding public members to the AJC. He
offered the following three reasons for his support. First, the
Alaska Constitutional Convention Minutes were clear that one of
the reasons for the attorney members was that they knew their
fellow attorneys better than the public, and thus were in a
position to pick the best. He related that when he passed the
bar in 1964, there were 154 lawyers in the entire state and he
knew them all by name. However, today, there are thousands of
lawyers and clearly, he opined, inside knowledge of attorneys
does not apply today as it did 50 years ago and if there is such
knowledge it can easily be communicated to public members.
Secondly, the National Lawyers Guild, of which he has been a
member for 50 years, is run with factions of plaintiff's lawyers
versus insurance defense lawyers, prosecutors versus criminal
defense lawyers and other factions. The common complaint about
the Alaska Bar Association bar is that certain factions vote in
a block for or against a particular candidate such that public
members are a real benefit, he opined. He noted that public
members are recruited and nominated by the governor and vetted
and confirmed by the legislature. Thirdly, and most importantly
the present system is undemocratic and, he opined, places
control of the appointment of one of the three branches of the
government in the hands of a group the majority of which is not
subject, even indirectly, to the people of Alaska. "I believe
that is wrong," he said. Alaska established a "whole"
democratic system, not a two-thirds system, he stated. He said
he could understand testimony from lawyers and judges defending
their control, after all when one holds the power one can come
up with good reasons to keep it. Mr. Flint said he did not
understand why anyone else would object to the creation of a
majority of public members [on the AJC] as that reflects the
system "we say we have and want."
2:18:22 PM
KEVIN FITZGERALD offered the following statement:
My name is Kevin Fitzgerald. I'm a life-long Alaskan.
I come from a family of lawyers, my sister's a lawyer,
my other sister is married to a lawyer and my older
brother is involved in the legal business, which as
you might imagine made dinners interesting. Presiding
over all of it was my father, James Fitzgerald, who
was a longtime Superior Court Judge, Supreme Court
Justice, and Federal District Court Judge; and in fact
there is a dedication next month for the naming of the
Federal Courthouse after his name.
I, whether it be a bless or a curse, depending on your
perspective, I am also a lawyer, licensed since 1987
to practice law, and after a one-year clerkship I was
a prosecutor for eight years before going into private
practice. I am also the most recently retiring member
of the Alaska Judicial Council having completed my
six-year term just last month as a representative of
the Third Judicial District. I am here today as a
member of the public and a former member of the Alaska
Judicial Council. At the outset, I would say that
while I have been a member of many committees, I am
most proud of my service with the Alaska Judicial
Council. Not only because of the work that's done is
terribly important but because of the people, both the
attorneys and the public members with whom I had not
only the opportunity but really the privilege to
serve.
I would say at the outset of remarks that essentially
state the proposition that the merit selection process
is far superior to any alternative with which I am
familiar. I would also say that based on my
involvement with Alaska Judicial Council, I am
familiar that the merit selection process currently
employed in this state is held up among other states
that employ the merit selection process as a gold
standard. The reason why that is the case is because,
as currently constructed, the process that we employ
here in Alaska strikes a brilliant balance between a
variety of different interests: political, judicial,
public, attorney, geographic diversity, and a process
of appointment to the Judicial Council which is
designed to maintain those balances in that diversity.
The Judicial Council has been criticized before and it
certainly will be criticized again. And, is it a
perfect process, of course not - no process is. I can
tell members and assure members of this committee that
while I was on the Alaska Judicial Council ... there
was a move to try to make the process ever more
transparent, appreciating that the transparency better
serves the public's understanding and the public
knowledge about the process. There was a comment made
by former Chief Justice Carpeneti that apparently was
posed to him with regard to the federal selection
process, and I was also a member of the federal
selection process for a magistrate judge and can
indicate unequivocally and based on first-hand
knowledge that the process there is "cloaked with
secrecy" in comparison to the transparent process that
the selection employs or the process employs with the
Alaska Judicial Council.
I believe, however that the main criticisms of the
Alaska Judicial Council either manifest a
misunderstanding of the constitutional mandate of the
council or demonstrate a fundamental misunderstanding
of how the process actually works. In other words,
the complaints that I hear are almost exclusively
about the process, not about the fundamental makeup.
Having said that, there appears to be of course the
goal the constitutional mandate of the council is to
refer the most qualified applicants to the governor
from which he can select. I know of no evidence,
empirically or otherwise, that would serve to
demonstrate that the Alaska Judicial Council isn't
adequately serving this goal. The fact is we have a
judiciary we can all be proud of and which is the envy
of many jurisdictions.
What I believe is contemplated in this proposal
represents a fundamental shift in the balance which
has served all of us so well. And by us, I mean
members of the bar, the litigants that appear in
court, as well as well as the general public. It
appears that some of the main criticisms of the Alaska
Judicial Council have already been addressed, but as I
understand one of the stated reasons; and I appreciate
having said that there may be all sorts of unstated
reasons, is that attorneys dominate the council. And
I believe, frankly, that is borne out by naivety as
certainly the empirical evidence doesn't support that.
And I would expect that the public members that have
served on the Alaska Judicial Council would find that
kind of comment offensive because one of the parts of
... my experience with the Alaska Judicial Council is
that I had the opportunity to deal and address with
and confer with very smart, capable public members.
Not to violate the deliberative process, but there is
not a shrinking violet among any of the people that I
served with. And I found myself re-evaluating my own
position repeatedly based upon the insightful comments
and remarks that were made by the public members.
The other criticism that is leveled against the Alaska
Judicial Council with regard to how it's currently
constructed is that it's not geographically diverse
enough. And I believe that the current composition
does, in fact, provide due consideration to area
representation. Both the public members and the
attorney members are all drawn from different judicial
districts and the manner in which they are appointed
is designed to maintain that important balance. I
would add that with regard to the position that is
being sought to be filled, it is after all a judicial
position and who better to determine who is among the
most qualified than the attorney members who have the
most knowledge, including first-hand knowledge about
the applicants. The Constitutional Convention
language, I believe it was Representative McLaughlin
actually made a comment when this very similar issue
was addressed, and he said, "The intent of the
Missouri Plan was to give predominance in the vote to
professionals who know the foibles, defects and
qualifications of their colleagues." In short, the
council as currently comprised provides constitutional
due consideration to area representation without
regard to political affiliation. While a fourth
public member might be added, you would have add an
additional attorney member to be added in order to
maintain the very delicate balance that's so important
and integral to the process as a whole. I would note
that ... the only Judicial District that is not
currently represented is the Second Judicial District
and at some point, frankly, it becomes a logistical
and administrative headache. Nor am I aware that the
Second Judicial District is not otherwise being ably
represented by other members of the Alaska Judicial
Council. As a result, the Alaska Judicial Council in
design and in actuality is a representative body.
Those will conclude my remarks unless there were any
specific questions. And I thank you for allowing me
to share mine.
2:27:37 PM
MICHAEL PAULEY, Alaska Family Action (AFA), paraphrased the
following written remarks, a copy of which is contained in the
committee file [original punctuation provided]:
Thank you, Mr. Chairman, members of the committee, I'm
Michael Pauley. I'm representing Alaska Family
Action, which is the legislative advocacy arm of the
Alaska Family Council.
Our organization supports more public involvement in
the process by which we select, evaluate, and retain
judges in Alaska. We support the goal of House Joint
Resolution 33, which would increase the public's
decision-making authority in that process.
No person can serve as a judge or justice in Alaska
without first being nominated by the Judicial Council.
This concentrates an awesome amount of power in the
seven members who serve on this panel. In fact, they
have more power than any other single entity to
determine who will hold the reins of power in one of
our three branches of government.
If we look at other states, there's a wide diversity
in the number of people who serve on judicial
nominating commissions:
Colorado: 16
Arizona: 16
Florida: 9
Utah: 8
Iowa: 15
Oklahoma: 15
Tennessee 17
So, the proposal in HJR 33 for a 10-member Judicial
Council is hardly radical or untried, and it's
certainly mainstream as compared to other states. It's
also important to note that the population of Alaska
has at least tripled since the time of statehood, and
the court system has grown along with it. Creating a
larger Judicial Council seems appropriate as well,
given its expanded workload and responsibilities.
But beyond the issue of the total membership on the
Council, there's also a very crucial issue concerning
what the proper balance should be on the Council
between members who are there representing the
interests of the state Bar Association vs. those
members who are representing the general public.
Those who defend the Judicial Council's existing
structure argue that it's perfectly balanced by having
3 attorneys and 3 public members. We strongly
disagree with that view.
The attorneys on the Council are selected by the Board
of Governors of the Bar Association - an entity with
4,212 members. They get to choose half the regular
voting members of the Council, and they constitute ½
of 1 percent of the population of this state. The
three public members are there to represent non-
attorneys - the other 731,000 Alaskans who are served
by the Court system. Whatever one might call this
system, it's not balanced. It shifts enormous power
away from the general public and concentrates it in
the hands of those who make a living practicing law in
front of judges.
It's also important to remember that the Chief Justice
is a dues-paying member of the Bar Association, and so
in reality the Bar members have a majority of four of
the seven seats on the Council.
Now some former attorney members of the Council have
stated that they feel like they were representing all
Alaskans, not just the Alaska Bar Association. That
is an admirable sentiment - but the fact of the matter
is that the Board of Governors of the Alaska Bar
Association has exclusive control to determine which
members of the Bar serve on the Council. This cannot
be emphasized enough: The Bar members of the Council
are NOT appointed by the Governor, and they are not
required to be confirmed by the Legislature. In
contrast, the non-attorney public members must appear
before the House and Senate Judiciary committees,
where they can be questioned and grilled about their
backgrounds, their political beliefs, anything. But
meanwhile, the Bar members - most of whom are skilled
trial lawyers - get a free ride, and don't have to go
through this occasionally tough process.
This is different from how we structure other
commissions in government. We of course recognize that
we should have physicians on the state Medical Board.
But we don't let the Alaska State Medical Association
appoint them! The Governor appoints the physician
members AND the public members, and they both have to
stand for legislative confirmation - doctors and lay
people alike, they all get treated equally. The same
holds true for the Board of Nursing and the Board of
Pharmacy.
One reason we support adding more public members is
that it will provide a valuable check on the ability
of Bar Association members to vote as a bloc to
prevent clearly qualified judicial applicants from
being nominated for the Governor's consideration.
There have been five notable examples in just the last
two years where all three public members of the
Council voted YES to nominate a particular applicant
for a judicial vacancy, but all the participating
attorney members voted NO. In each of these cases, the
Supreme Court Justice sided with the attorneys and
voted NO - thus acting to defeat the nomination and
shorten the list of nominees that would be sent to the
Governor.
What is stunning is that three out of these five votes
occurred with respect to vacancies on the Supreme
Court. And so we have this unseemly situation where
the Chief Justice's NO vote is directly influencing
who will be chosen to sit with him or her on the High
Court. The potential of the Chief Justice in these
situations to alter the future philosophical direction
of the Court is undeniable.
I'd like to discuss just one example of these split
votes between public members and attorney members,
because I think it speaks volumes about what is broken
in our current system.
In June of 2012, the Council met to consider the
vacancy created when Justice Morgan Christen left the
high court. The Council had to vote on a very
distinguished group of 12 applicants. The pool of
talent included: one judge from the Alaska Court of
Appeals; three judges from the Superior Court, one
each from Fairbanks, Palmer, and Anchorage; and two
administrative law judges, one from Anchorage and one
from Juneau. Incredibly, not a single one of the
candidates with prior judicial experience was
nominated for the Governor's consideration.
Instead, out of this distinguished field of
applicants, the Council chose to nominate just two
individuals. One was an attorney in private practice
who also happened to be a member of the Board of
Governors of the Alaska Bar Association - the same
group, of course, that selects the attorney members of
the Council. The other nominee was the former director
of the Alaska Legal Services Corporation.
On June 26, 2012, the Alaska Dispatch ran a story
about these two applicants that the Council nominated
to the Supreme Court.
The reporter, Amanda Coyne, decided to look at the
political views of the two nominees. Among other
interesting details, she reported that one of the
nominees, Mr. Peter Maassen, was a registered Democrat
and a contributor to numerous liberal candidates and
causes. She also reported that the other nominee, Mr.
Andrew Harrington, was registered as non-partisan, but
was formerly a member of the ACLU.
Now, as a member of the public, upon reading this, you
might naturally conclude that out of a field of 12
applicants, the Council had chosen to nominate two
attorneys with left-of-center political views to the
Supreme Court. Is this a problem? As a representative
of a conservative political organization in Alaska, my
answer may surprise you: No, it's not a problem that
the Council chose to nominate these gentlemen.
Very few would doubt that both of these gentlemen
possessed the qualifications to serve on the Alaska
Supreme Court - but surely not to the exclusion of the
many other qualified applicants with distinguished
careers and prior judicial experience. The scandal
here is not about who WAS nominated, it's about who
WASN'T nominated. It's not the Judicial Council's job
to nominate only liberals or only conservatives, it's
the Governor's job - as an elected official - to weigh
those subjective factors in a nominee.
Now, some of the more strident critics of HJR 33 have
made the rather unflattering charge that the goal of
this amendment is to allow the Governor to appoint
political hacks to the Council, who will nominate only
applicants to his liking, so the Governor can stack
the courts as he or she wishes.
My argument would be: if you want to look at how
future gubernatorial appointees might vote, your best
yardstick is to look at how the past ones have voted.
Let's look at the June 2012 vacancy on the Supreme
Court as an example. At that time, on the Council,
there were two public members on the Council appointed
by Governor Palin, and one appointed by Governor
Parnell. So how did these three Republican appointees
vote on the two rather liberal nominees to the Supreme
Court? Well, the answer is, that in the case of Mr.
Maassen, all three Republican appointees to the
Council voted YES to forward his name to the Governor.
In the case of Mr. Harrington, two out of the three
Republican appointees voted to forward his name to the
Governor. So the evidence shows that the public
members were being inclusive in who they chose to
nominate.
But in stark contrast to this, there were three
different cases in 2012 alone, where the public
members voted unanimously to nominate certain
applicants to the Supreme Court, while the attorney
members, including the Chief Justice, voted as a bloc
to prevent these applicants from being considered by
the Governor. In all three of these cases, the
dispute did not concern an applicant who was some
"crazy right-wing activist," instead the applicants
were sitting Superior Court judges who had already
gone through previous vetting, and approval, by the
Judicial Council. These were currently serving judges
who were passed over, not crazy activists or
substandard attorneys.
We believe that HJR 33 is a proposal that is
consistent with this constitutional heritage, and we
urge your support of this measure.
Thank you very much.
2:38:28 PM
ELEANOR ANDREWS offered the following statement:
I currently live in Anchorage. I have lived in
Juneau, serving in the Sheffield Administration as
Commissioner of Administration. I have also lived in
Fairbanks.
I was a member of the Judicial Council from 2001 to
mid-2007. First of all, I want to say that it was
probably the most beneficial public service I have
ever been involved in. I was amazed at how many
people are willing to give up days of their time
without compensation, traveling to inhospitable
places, maybe for the lawyer members not earning fees
those days. I was a business owner when I did it and
I felt like it was my duty to help the governor pick
the most qualified people to serve on the bench.
There has been a lot of speculation from people who
have not served on the council about how we get
together to decide who is going to go forward and who
isn't. I will tell you that the people that we have
sent, when I was on the council, were the most
thoroughly vetted individuals for any position I have
ever been involved with. We checked their credit, we
checked their family history, we checked whether
they've got DUIs or any other kinds of criminal
problems in their past. We reviewed their writing
samples and I'll tell you, a lot of the people, I'd
say that 25 percent, would have failed on an essay
contest in high school. So, we check a lot of things
and the most important thing we do, when they've asked
for a private interview, is to really delve into their
judicial temperament. I'd always ask have you ever
had any contact with the majority of the people who
are going to come before the court. ... whether they
were Republicans, or Democrats, Liberals or
Conservatives. We were looking at their ability to
analyze, to empathize, to get along with other people.
We also reviewed comments from their peers who
appeared with them in court, comments from judges,
comments from people who are judicial court watchers
who sit in court and see how the judge conducts
himself. I just want to say that for the six years I
served, there were two times that governors did not
want to select from the panel we sent. One was
Governor Knowles and the other was Governor Murkowski.
Governor Murkowski took the position once because the
person that he personally supported was not sent
forward, that we should send every applicant who met
the Constitutional requirement, which in that pool
meant 31 people.
So I think that we've got a system that over time has
proven to work. I'm sure there are anecdotal problems
that people have and want to be fixed but I don't
think changing the composition of the council is going
to help that because no matter what agenda people walk
into that meeting with ... I'm talking about council
members, by the time we listen to our peers, whether
they were attorneys or not, we understood we were
looking for the same thing, the most qualified people.
And I felt that in all cases except for one, we sent
the most qualified. There is always a very clear
break from those that are unacceptable, those that are
just okay, and the most qualified. And I don't think
that changing it is going to make any difference. I
never had any instance where I felt, or my other lay
people felt we were intimated by the lawyers. In
fact, I think they tend to talk and go so long around
the bush that often they lost their point. So, I
would urge you to keep the council as it's currently
constituted. And if people want things like more
geographic representation, you don't have to change
the number of people just choose them from different
areas. And I also want to say one thing about the
lawyers who serve, there's not a whole group of
lawyers out there that are willing to sacrifice
themselves and give up the time that it takes to be on
the council so they draw from those that have a sense
of public service and I thought that they all handled
themselves professionally and without bias.
2:43:29 PM
BILL GORDON offered the following testimony:
I've lived all over the state. I am a lifelong
Alaskan. I served three different governors in
various positions regarding judicial selection so it's
over a span of 40 years. I served with the governor's
office actually vetting council nominees for the
governor and now am currently serving on the [Alaska
Bar Association] Board of Governors as the current
governor's non-attorney member of that association.
I've also served a six-year period on the Alaska
Judicial Council.
The area I'm going to weigh in on today ... is that
when some have characterized deliberations during the
nomination procedure as a sort of a dance weighing the
interests of non-attorneys against those of the bar.
And, I just have never found that. I've always found
that the attorneys were public members first who had
the same concerns that the non-attorneys did regarding
the qualifications as set forth in the criteria the
council uses to make these nominations. In fact, most
of the nominees that we sent out during the six years
I've been there would be considered to be in the top
tier, the most qualified of the bunch. ... I think
every time I was there they were unanimous. And I
think that is true of most of the other times too.
The only time we had these different votes where the
Chief Justice may have to weigh in or there might be
an attorney member voting with some of the public
members was when we got to the periphery of the
candidates who didn't quite measure up to the top
level candidates and we were trying to either move
them up or move them down. There would sometimes be a
difference of opinion, but I want to assure and re-
enforce that the people who would have gone out of the
council at the top tier were almost always unanimous
choices of both the attorneys and the public members
...
Some have also speculated why some obviously qualified
applicants haven't been selected. I heard a person
talking about that earlier, not selected among the
most qualified and I don't think that speculation
would change by the addition of any number of new
public members, whether they be attorneys or not be
attorneys. The decision of the council on each
judicial nomination may not be supported by all and
undoubtedly it won't be, but the process is set up to
nominate for the governor's consideration only those
people that the framers called "the best timber."
And, I can assure you that those people who were sent
up were always that from among the group we looked at.
Let me finish here by saying, I am unabashed partisan
Republican. ... I'll tell you right up front, I have
worked many times on many, many Republican campaigns,
including governors. Three times successfully in many
local races and I've got lots of conservative friends
and ... there is a perception among them that the
process is biased in favor of one particular political
persuasion over another. Some say the bar members
tend to be more liberal than the population in general
and frankly, that is also my perception. But I can
honestly tell you that during my six year term and my
many months of meetings with the bar members with my
time on the council and my time on the Bar Association
Board of Governors, I have never heard an attorney or
non-attorney member ever argue or promote a political
bias for any of the candidates. To do so is strictly
outside the published criteria of the council and it
just doesn't happen. Some apparently seem to desire
to change this process to make it more manageable to
effect the results to their favor, I guess. In my
opinion what we are attempting to accomplish by HJR 33
and the committee substitute effectively places the
governor, once again, in total control of not only the
nomination process but also the appointment process.
Where the framers envisioned a situation where the ...
the professionals were also members of the public and
the political appointees would work to find consensus.
And some seem to want to apparently tip the balance to
the political and I think that would be a big mistake.
In conclusion, under HJR 33 the philosophy of
occupying the governor's office, whether liberal or
conservative, could effectively have political
control. As a conservative myself I would be very
comfortable with judges nominated and appointed by a
likeminded governor. But, I'm really not. I just
don't feel that this process is set up that way.
Justice isn't liberal or conservative; it's not left-
wing or right-wing. Justice isn't about politics and
it shouldn't turn with the political tides. Justice
should be a safe harbor that we all seek whatever our
politics when we find ourselves in the storm of
controversy. The proposed amendment doubling the
governor's appointees effectively eliminates the
balance and vision by the Constitutional framers, and
in my opinion, would destroy the merit selection
system as we now know it. That would be a tragedy and
I urge you to vote against it.
Thank you Mr. Chairman.
2:50:22 PM
FRITZ PETTYJOHN stated he is testifying as a member of the
Alaska Bar Association for the last 40 years, and is in
agreement with all of the remarks put forward by Robert Flint
and Michael Pauley. In particular, he expressed agreement with
Mr. Pauley's comment that the scandal is not really who gets
nominated, but who does not get nominated. He added that the
previous testimony was "spot on." He then said it appears to
him there is a conflict of interest between the two views of the
judicial system. One is a rather expansive view in which
individuals believe there are many constitutional issues, and
therefore they can ignore what the legislature says because the
individuals are interpreting the Alaska State Constitution,
which trumps the law. Other individuals have a more restrictive
view of the judicial role as these individuals want to be very
careful before they resort to an constitutional argument and
impose their will on the prerogative of the legislature. He
expressed that based on his experience this philosophy is the
philosophy of the Alaska Court System, "the more activist"
philosophy. He explained that the conflict arises when
individuals are not inclined to go along with [the activist]
philosophy as it makes them uncomfortable. He suggested that
the public is probably more in line with the more restrictive
view of the role of judges in Alaska's society as opposed to the
rule that lawyers have of [the role of judges]. In conclusion,
he stated he has been in California for the last 13 years as
regretfully left for family reasons and noted that he still
votes. "I still have a say on who is on the Alaska Judicial
Council," but legislators and citizens do not, which appears to
be "outrageous" to him and completely undemocratic. The system,
he opined, would be improved with HJR 33, and thus he encouraged
the committee to support it.
2:53:16 PM
MIKE COONS paraphrased the following written remarks [original
punctuation provided]:
I fully support HJR 33 and HB 200.
As a voter, there is so little solid information on
Judges. Over the years, the information from the
Judicial Counsel has been lean and not helpful in
helping me to make an informed decision on voting.
This amendment puts more citizens than lawyers in the
counsel who hopefully will add a better level of
evaluation and scrutiny of the Judges, their history
of decisions, how they sentence criminals, either
lightly or heavily, etc. Criminal behavior and the
resulting punishment must be deterrent vs the views of
many on the left that prison is a place to learn to
behave in civil society. I will vote, if I know any
Judge who is lenient, the problem is the Counsel is
mute on this issue.
Lastly I want to know if a Judge is following the
Alaska Constitution and the US Constitution or is
legislating from the bench. Those who legislate must
be voted out. I do hope that my fellow citizens on
the Counsel will let us the voters know whom these
judges are.
I'm not asking for a "Hanging Judge" evaluation of the
Judges, but I do want some clear history of what these
judges are doing and frankly I do not believe a
counsel like we have now is doing that with the
lawyers making those determinations vs citizens.
Lastly, we must have a counsel that will follow the
law itself and not endorse Judges. All I want is the
information and I'll decide if Yes or No. Just for
clarification, just about all my votes for all Judges
because of poor information have been No.
2:56:51 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, offered the
following statement
I think at the outset I ought to address the comments
that were made at the beginning of the hearing about
the court system's role here. As you know, we don't
usually oppose or support any bills. We are neutral
with respect to nearly all the bills and resolutions
that come before the legislature, and there is good
reasons for that. The court respects the separation
of powers and recognizes that policy determinations
and substantive law changes are completely up to the
legislature. Our role is to implement those laws that
you pass and to perhaps build procedures around those
laws. My role here in the legislature as the liaison,
if you will, is to help make laws that are ... that
can be implemented and to try to make sure that things
that do get passed are not going to cause problems. I
provide data, I provide information about procedures,
etc. For this resolution, I have gone on record as
saying the court is opposing this. I said that in the
other body shortly after HJR 33 was introduced, I
spoke to many of you and your staff ... the committee
staff, and made that clear. So the court has decided
to oppose that bill. That, as I say, is very rare. I
was directed to do this by the Supreme Court. I was
not at the meeting where the issue was discussed, but
I learned that that was what I was to do, and that is
what I am doing. Now why they might have opposed it,
I have assumed that it is because as former Chief
Justice Carpeneti explained, when a bill or resolution
has the potential to directly impact the
administration of justice that's a situation that the
court wants to, and needs to get involved in. And,
therefore, my assumption is that the Supreme Court, at
least, believes that this directly impacts the
administration of justice. How? We, the court system
depend very much on the work of the Judicial Council.
We are not the Judicial Council. I've never been in
the Judicial Council's offices, I don't know the names
of many of their staff, but the court appreciates, and
needs, and leans on, the work that they do. Both in
screening judicial applicants and the other piece of
their work that's very important to the court is
making recommendations during retention cycles.
Because this is so important to the court is the
reason that the court is opposing it. And, again,
why? Because the resolution has the potential as
others have testified to, to change the quality of the
judges on the bench. It has the potential to change
the focus on merit selection and the focus on
qualifications that has been the hallmark of judicial
selection up through now. There's been some questions
about why that could be, just simply adding more
public involvement sounds like a innocuous or a valid
thing to do as the state has grown. Well, again, as
it has been alluded to by other testifiers the
potential for changing the dynamic of the council when
you have a majority of members who are governor
appointees is great. That is, up through now,
currently we have three attorneys and three public
members. As you've heard and I won't go through the
vote tallies again, it's been not divisive, it has not
be factious, it has not been attorneys versus non-
attorneys in more than a handful of votes. But, if
you have a majority of governor appointees who happen
to be of a like mind and happen to be appointed by
somebody who has a certain political philosophy, which
of course the governor would have, then the potential
is those ... that group, for example, six or under the
CS five, could exclude the views of the attorneys.
The attorneys are on there, if you look at the
Constitutional Convention minutes and even if you
don't look there, the reasonable presumption is the
attorneys are on there because they're aware of other
attorneys that they've worked with or against
qualifications. They know their writing skills, they
know how they can control a courtroom, they know how
they can be emotional or not during difficult cases,
they know what type of judge they would be. Now the
public members, of course, have a very valid role.
Again, I'm going to stress that the court system wants
to see balance. We could ... if you want more public
involvement it would be fine to have four public
attorneys ... or four public members and four
attorneys, or five and five. That is not a problem.
You want more diversity, that's easy to write into a
statute or the constitution. But, the issue, and I
again wasn't at the meeting, the issue that has the
potential to impact the administration of justice is
to have six members that would be answerable or
accountable to the governor choosing who gets to go to
the governor. I ... and ... I just want to address
directly the comment you made at the beginning about
being frustrated and I haven't seen the email and I
don't know what that email is. As the committee
knows, I am the spokesperson for the court system when
it comes to bills and resolutions. I am fairly
positive I wasn't copied on that email, but since it
is public that the court is opposing it ... there ...
we have had people call and say how do I get involved,
what do I do, what time is it going to be heard, what
number do you call? There is somebody who is helping
with that effort to coordinate some of the testimony,
and I believe that that is not just justifiable, but
probably good practice. When an entity is opposing a
piece of legislation to help ensure that we don't have
duplication or ... just like supporters of
legislation, probably if this resolution ensures that
certain people know when things are going to be heard.
And, I ... again, I haven't seen the email but I would
just submit that it isn't improper in any way for
somebody at the court to help field those phone calls
when we are on record for opposing the resolution.
Okay ... I want to go on to one point ...
3:03:33 PM
MS. MEADE responded to Chair Keller that she has several points
she would like to make and could come back.
I'll kind of quickly then hit the point that I don't
think has been given enough stress and that is the
Judicial Council's role in retention. And the
Judicial Council does assess and review the work of
current sitting judges and then make recommendations
that presumably many voters rely upon. It comes out
in the election pamphlet. Well, one of the ways that
this resolution has the potential to harm the
administration of justice is that if a sitting judge
is faced with a case that is controversial and has the
state on one side ... say the governor on one side,
whether it is an oil and gas case, whether it is a
subsistence or land rights case, whether it is an
environmental case, the judge is faced with the
decision of voting in favor of the governor's position
or the other side's position. Now if the ... that
judge votes in favor of the governor the real
potential exists under this bill that the governor's
appointees could come out with a no recommendation for
that judge. That judge could have the view that it's
hard to be impartial. Litigants in front of that
judge could have the view that it is hard to get an
impartial decision maker with that, at least, threat
there that if the decision doesn't favor the
governor's position there might be consequences. Now
this is something that is just a potential under the
bill but I feel that it would impact citizens,
companies, corporations, everybody's view of how
impartial their judge is if they felt that the judge
could be removed or get the no recommendation and lose
their job if their decision isn't the way that a party
thinks it should be. One last point, we have over 70
judges in this system, our judges come from all
different backgrounds. There is a view, I believe,
that persists that judges aren't liberal and it has
been said in other committees by some of the
testifiers that there ought to be a little bit more
conservatism on the bench. I want to say that we have
dozens of judges that came from the district
attorney's office prosecuting people, we have several
that came from the public defender's office, we have
many who have defended insurance companies, many who
have defended oil companies, many who have worked with
children and families on all sides of the issue. Out
of those 73 judges we have people who list, on our web
site where there is a link for ... about the judges,
as their hobbies: fishing, flying, athletics, boy
scouts, and church related activities. We have people
... judges who have gone to public universities,
private universities, law schools affiliated with
Christian groups; we have every array of judge on the
bench. Now could I say that some are conservative and
some are liberal, I honestly don't know, but with 73
judges with the array of the varied backgrounds and
the varied experiences and hobbies, I would submit
that they aren't too far from the rest of your
constituency. So, I know that you are in a hurry, I
will wrap up and if you have any questions I would be
happy to answer them.
3:07:23 PM
REPRESENTATIVE PRUITT questioned whether the Alaska Court System
would potentially be in favor of any sort of change to the AJC.
MS. MEADE responded that although she would need to discuss the
specific change with the Supreme Court, she opined that the
Supreme Court would be open to some change. For example, there
has been talk about geographical diversity as the Supreme Court
strives for diversity on its bench in terms of cultures,
backgrounds, and all sorts of areas. She related her impression
that the Supreme Court would not oppose legislation requiring
more geographic diversity among AJC members. Again, increasing
the size of the AJC is in and of itself not something she would
oppose as long as the balance was maintained, she explained.
Other ideas, such as fewer issues being confidential, more
public involvement in hearings and in other areas, and more
invitation for public comment would be fine, she noted. She
related her understanding that the Supreme Court would be open
to improving the process and would welcome more public
participation in the process rather than trying to stop
participation.
3:09:01 PM
MS. MEADE, in response to Chair Keller, explained that when
legislation appears to her to be important, she brings it to the
attention of the Supreme Court and her two immediate
supervisors, Administrative Director Christine Johnson and
Deputy Administrative Director Doug Wooliver. In this instance
Ms. Meade sent an email advising the Supreme Court that it
should know about HJR 33. She then received direction from her
immediate supervisor, Deputy Administrative Director Doug
Wooliver who had met with the Supreme Court and the
Administrative Director [Christine Johnson] in a closed meeting
as it was viewed as part of its deliberative process. She was
then advised to oppose HJR 33.
CHAIR KELLER, noting that Ms. Meade has always been a reliable
source of information from the court system confirmed that Ms.
Meade was not copied on the email he mentioned earlier.
3:10:56 PM
REPRESENTATIVE GRUENBERG asked Ms. Meade whether she had
completed her testimony or preferred to return at the next
meeting.
MS. MEADE responded that she would leave that to the will of the
committee and that she would put her comments in writing.
3:11:58 PM
SUZANNE DiPIETRO, Executive Director, Alaska Judicial Council,
stated that the AJC has not taken a position, either supporting
or opposing HJR 33, and her role in the process is to offer
information about what the AJC does and why. She reminded the
committee that one of the AJC's important constitutional duties
is to conduct studies to improve the administration of justice.
In that manner, the AJC can be of assistance to the legislature
on such issues, as recidivism, sentencing, alternative dispute
resolutions, whether certain programs are cost effective, and
whether mediation results in more agreements than litigation,
she explained. She referred to the constitutional structure
wherein there is a merit selection system, but pointed out it
should be considered that Alaska has a merit selection and
retention system as the legislature cannot consider the
selection of judges until considering the retention of judges.
She explained that the founders conducted a vigorous debate
regarding Article 4 and considered two options that had been
used for selecting and appointing judges. The two options were
the popular election and the option of
gubernatorial/presidential appointment. The framers decided
that the election process suffered from the fatal flaw of making
judges beholden to political parties' service, while the
appointment structure suffered from the fatal flaw of choosing
lawyers who have close personal relationships with the governor.
Therefore, that the framers chose a middle [road] which is the
merit selection and retention system. Ms. DiPietro opined that
the framers intended for the AJC to be a small select group that
would work hard, engage with each other, determine the best
candidate available, and forward those names to the governor
rather than to be a representative body. She further opined
that it is not a fair criticism of Alaska's current system to
say that the Alaska Judicial Council is not representative
because "that is just not the purpose, at least according to the
founders."
3:15:59 PM
MS. DiPIETRO reminded the committee that the Alaska Bar
Association Board of Governors is state sanctioned and actually
controlled by the legislature, as the legislature authorizes the
Alaska Bar Association. Although the Board of Governors does
appoint, it does so after an election that occurs among the
attorney members. She informed the committee that the AJC has
had the following four Alaska Native members: Vicki A. Otte,
Leona Okakok, Gigi Pilcher, and Mary Jane Fate. She then
referred to documents in the member's packets briefly depicting
the way the council's decision making comes out. Alaska
Judicial Council members have a remarkable rate of agreement and
votes are either unanimous or unanimous but for one vote 81
percent of the time. With regard to instances when the Chief
Justice votes, she related that the Chief Justice has voted 68
votes of the 1,136 votes, which is 6 percent of the votes. When
the Chief Justice is called upon to vote, 75 percent of the time
the name in question is forwarded to the governor. She noted
that within 73 percent of vacancies, the AJC has forwarded more
than the minimum of two or more names to the governor. She
explained that statistically, but not always, a fewer numbers of
names go up on rural judgeships where there may only be two or
three applicants. She remarked that it is important to
understand that when the council is voting on candidates to send
to the governor, it is looking for the very best people and not
the middle of pack applicants. Sometimes stronger candidates
show up and an applicant could drop from the top candidate to
the bottom, she opined.
3:19:38 PM
MS. DiPIETRO referred to a chart, within each committee member's
packet entitled "AJC Judicial Nomination Votes over Time" that
depicts the number of votes taken by the council, which
fluxuates depending upon the number of vacancies and number
applicants for each vacancy. She noted that the last couple of
years AJC has been busier voting more than at any time in its
history. She referred to the 5 Chief Justice votes in the last
2 years that have been criticized, she expressed that it should
be taken into context as it was 5 out of several hundred votes.
She explained that the chart depicts that where the total votes
spike, the Chief Justice votes flip up a bit also. She opined
it would be worrisome from a statistical standpoint if the total
numbers of votes of the council were pointed straight down and
the Chief Justice's votes were pointed straight up. However,
that is not the case, she stated.
3:21:21 PM
MS. DiPIETRO explained that the majority of other state
nominating commissions [in the United States] have equal numbers
of attorney and non-attorney members for all of the reasons
previously stated. There are some commissions that have more
lawyers than non-lawyer, and a handful that have more non-
lawyers than lawyers as HJR 33 proposes. She asked the
committee to consider that four of the five that have more non-
lawyers than lawyers have a restriction on political party
affiliations. For example, Arizona, which has been cited as a
possible model for Alaska, does have ten non-lawyers and five
lawyers, but no more than five of the non-lawyers and no more
than three of the lawyers can be of the same political party.
She noted that is not Alaska's system as the AJC is without
regard to political affiliation.
3:22:14 PM
CHAIR KELLER questioned if the AJC met regarding SJR 21.
MS. DiPIETRO responded yes, and added that meeting was noticed,
and it did not go into executive session.
3:22:38 PM
CHAIR KELLER described a hypothetical scenario wherein had the
question come up before the council whether or not to support or
oppose SJR 21 or HJR 33, there could have been a split vote and
the Alaska Supreme Court Chief Justice would have had to break
that vote. Moreover, the Supreme Court is the entity directing
the Alaska Court System to oppose [SJR 21 and HJR 33], he
opined.
MS. DiPIETRO acknowledged that theoretically that could have
been the case, but it did not happen.
CHAIR KELLER expressed that his scenario was a complete theory,
but noted there are not that many options with six people.
MS. DiPIETRO highlighted that there is the 82 percent agreement
rate of the AJC.
3:23:39 PM
REPRESENTATIVE GRUENBERG requested that Ms. DiPietro be
available during the next meeting on HJR 33 and questioned if
she needed more testimony time as she had commented that there
appeared to be more of a turnover in judges, and he did not
require an answer today as to whether there is a reason for that
turnover.
3:24:42 PM
REPRESENTATIVE PRUITT questioned if the AJC may be open to
certain changes, or whether the attitude is that it is working
fine and should be left alone.
MS. DiPIETRO, noting that the AJC has not instructed her to take
a position, but certainly anything that would cause a
disincentive for the council members to engage with each other
[is of concern]. For example, Kevin Fitzgerald's testimony
depicted that the process AJC has seen over and over again
whereby people communicate their views, which causes others to
change their views and "that is the strength of our process."
The engagement structurally must happen and there must be four
votes to take action. She reiterated that anything creating an
imbalance that would create a disincentive for true and candid
engagement and deliberative process would be a shame and would
cause the process not to be as good as it is right now.
Certainly, increasing one each appears like an interesting idea,
although the process is so intensive that the more members going
around the table with an interview, the longer the interview
process.
3:26:45 PM
REPRESENTATIVE PRUITT acknowledged that changing the process is
a big concern for the AJC, but inquired as to the AJC's thoughts
about changing the geographical [makeup], requiring the Alaska
Bar Association members to be legislatively approved, or
changing the number of names given to the governor contingent
upon a certain number of applicants. Outside of impacting the
specific process, itself, he questioned whether the council is
open to discussion.
3:27:47 PM
MS. DiPIETRO replied "yes," adding that one of the AJC members
has initiated those types of discussions. She explained that
some aspects could be altered by changing the by-laws, and
others are set in statute or the Alaska State Constitution. She
opined that the AJC is always open to improving its process. In
reference to the public involvement piece, the AJC involves the
public in its process more than any other nominating commission
in the country as the public is involved at every step, she
remarked.
3:28:55 PM
KEN FISCHER, representing himself and no other entity, related
that he is viewing HJR 33 from the perspective as a six-year
member on the University Of Alaska Board Of Regents. In order
for the committee to remember his testimony he offered an
acronym for "B O A T." "B" is for "B"etter as HJR 33 would add
the number of non-attorneys to seven, or nine, or eleven, which
is his recommendation as it would allow more robust
deliberations. There are eleven regents on the Alaska Board of
Regents, he explained, which ensures robust exchanges on many
policy issues even though all have been appointed by Republican
governors. "O" is for "O"pportunities for more Alaskans to have
a real meaningful impact in the state. He reiterated that the
Board of Regents has eleven members consisting of members from
various areas in Alaska. He said he was astonished by several
of the assertions made by Mr. Carpeneti, a former Chief Justice,
including his statement "I don't think we have an attorney
dominated system. I think that we have a system that is evenly
balanced." However, Mr. Fischer remarked that four is not even
to three. He opined that the former Chief Justice was
participating in a public debate as the chief witness for the
opposition. Mr. Fischer noted his agreement with Mr.
Carpeneti's statement "The governor's appointment to the council
would represent the governor's point of view." He recalled that
Mr. Carpeneti attributed the characteristic of human nature to
the government, such that the governor will appoint an
individual with his/her world view. He highlighted, however,
that the public can hold the governor accountable. Mr. Fischer
opined that Mr. Carpeneti refused to acknowledge that the people
who are the opponents of HJR 33, the Alaska Bar Association,
have human natures as well. Just as four is not even to three,
human nature is with everyone. Within the debate it should be
acknowledged that everyone has their own perspective and an
individual does not come in with a "clean slate". The framers
built structures in the nation's founding document to hold
government accountable, checks and balances, he explained. In
fact, the United States Constitution specifies that all bills
raising revenues must originate from the House of
Representatives because the founders wanted to hold those people
accountable because they are elected every two years. He said
that within the Alaska Constitutional Convention debates, the
idea requiring selection for the AJC members came from the
Alaska Bar Association and the makeup of that committee was five
attorneys and two non-attorneys. At the Alaska Constitutional
Convention a consultant was hired to review the document and the
consultant determined that within the AJC sections " ... these
sections in particular however go a long way toward withdrawing
the judicial branch from the control of the people of this state
and placing it under the organized bar. No state constitution
has gone this far in placing one of the three coordinate
branches of the government beyond the reach of democratic
controls. We feel that in its desire to preserve the integrity
of the courts the convention has gone further than is necessary
or safe in putting them in the hands of a private professional
group." "A" in the B O A T is "A"ccountabilty of which, in the
process, is the legislature and the governor. "T" is for
"T"rust as the last letter of the analogy of B O A T. Trust
that the people who will be in the deliberations in the [AJC]
will make correct decisions, as they will be from multiple
parties, he opined. People want what is best for Alaska. He
concluded by stating his strong support for HJR 33 as it's a
good government policy.
3:39:25 PM
CHAIR KELLER removed his objection to the motion to adopt
Version U.
3:40:22 PM
There being no further objections, Version U was adopted and
before the committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:41 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HJR 33 Ken Kreitzer Written Testimony.pdf |
HJUD 3/7/2014 1:00:00 PM |
HJR 33 |
| CSHJR 33 (JUD) Proposed Draft.pdf |
HJUD 3/7/2014 1:00:00 PM |
HJR 33 |
| HJR 33 Letter of Opposition~Robert Bundy.pdf |
HJUD 3/7/2014 1:00:00 PM |
HJR 33 |
| HJR 33 AK Court System Email re March 6 Testimony.pdf |
HJUD 3/7/2014 1:00:00 PM |
HJR 33 |
| HB255 Letter of Support~City of Fairbanks.pdf |
HJUD 3/7/2014 1:00:00 PM |
HB 255 |