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
txt
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.]                                                        

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