Legislature(2023 - 2024)GRUENBERG 120

03/08/2023 01:00 PM House JUDICIARY

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             HB  82-SELECTION AND REVIEW OF JUDGES                                                                          
1:49:22 PM                                                                                                                    
CHAIR VANCE announced  that the final order of  business would be                                                               
HOUSE BILL NO. 82, "An  Act relating to the selection, retention,                                                               
and rejection of  judicial officers for the court  of appeals and                                                               
the district court and of  magistrates; relating to the duties of                                                               
the  judicial  council;  and  relating   to  the  duties  of  the                                                               
Commission on Judicial Conduct."                                                                                                
1:49:38 PM                                                                                                                    
REPRESENTATIVE GEORGE  RAUSCHER, Alaska State  Legislature, prime                                                               
sponsor,  presented HB  82.   He provided  the sponsor  statement                                                               
[included  in  the  committee  packet],  which  read  as  follows                                                               
[original punctuation provided]:                                                                                                
      House Bill 82 would bring the Judicial system by to                                                                       
        what was envisioned by the framers of the Alaska                                                                        
     Constitution. First  it should be noted  that there are                                                                    
     two   types  of   judges.  1.   Constitutional  Judges:                                                                    
     Superior  Court  Judges  and  Supreme  Court  Justices,                                                                    
     which must be vetted  by the Judicial Council (Council)                                                                    
     and the Governor can only select  from a list of two or                                                                    
     more  names  submitted  by the  Council.  HB  82  holds                                                                    
     constitutional    judges   harmless.    The   operating                                                                    
     authority  of this  provision is:  Art IV  Sec 5.  "The                                                                    
     Governor shall  fill any  vacancy in  an office  of the                                                                    
     supreme  court  justice  or  superior  court  judge  by                                                                    
     appointing one of  two or more persons  nominate by the                                                                    
     Judicial Council.                                                                                                          
     2.   Statutory   Judges:    District,   Appellate   and                                                                    
     Magistrates.  The  last  of  the   3  is  not  in  this                                                                    
     legislation.  Existing  statute currently  follows  the                                                                    
     Judicial Council nomination  process. However, judicial                                                                    
     candidates are subject  to the legislature's discretion                                                                    
     on how  they are  selected, appointed and  whether they                                                                    
     are confirmed  by the legislature. HB  82 exercises the                                                                    
     legislature's  delegated  constitutional  authority  to                                                                    
     set policy  on how these statutory  judges are selected                                                                    
     to serve on  the bench. The operating  authority of the                                                                    
     provision is:  Art IV  Sec 4.  "Judges of  other courts                                                                    
     shall  be selected  in a  manner, for  terms, and  with                                                                    
     qualifications as prescribed by law."                                                                                      
     Currently,  Appellate  and  District Court  Judges  are                                                                    
     nominated  in a  statute defined  process that  mirrors                                                                    
     the Art IV Sec 5 Judicial Council process.                                                                                 
     The Council  is structured  to give  a majority  of the                                                                    
     Alaska Bar (Bar) members the  control of who gets to be                                                                    
     a  judge or  justice. The  deciding  vote in  a tie  is                                                                    
     given  to  the  ex-officio seventh  member,  the  Chief                                                                    
     Justice. The Chief Justice has  voted 79 times to break                                                                    
     ties since 1984.                                                                                                           
     Additionally, Bar members of  the Council are appointed                                                                    
     internally by the Bar  with no legislative confirmation                                                                    
     or   administrative   oversight.  Virtually   all   the                                                                    
     Judiciary Branch is, "beyond  the democratic control of                                                                    
     a more non-bias process."                                                                                                  
     The  constitutional  framers  that  sought  to  protect                                                                    
     upper benches  from becoming  bias when  choosing their                                                                    
     own installed safeguards, which  left the lower benches                                                                    
     up to legislative control.                                                                                                 
     Interesting  enough,  till  now the  legislature  ceded                                                                    
     100%  control,  and  it  mirrors  the  "constitutional"                                                                    
     Alaska Bar selection controls.                                                                                             
     The   Alaska    Constitutional   Convention   Judiciary                                                                    
     Committee Consultants wrote, as  reported by Vic Fisher                                                                    
     in  his book,  "Alaska's Constitutional  Convention." -                                                                    
     "No  state  constitution  has ever  gone  this  far  in                                                                    
     placing  one of  the three  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 farther  than is  necessary or                                                                    
     safe (emphasis added)  in putting them in  the hands of                                                                    
     a private professional  group, however, public-spirited                                                                    
     its members may be.                                                                                                        
     House  bill   82  strikes  the   "safe"  constitutional                                                                    
     balance  envisioned  by  the   framers  by  giving  the                                                                    
     governor   and   the    people's   representatives   an                                                                    
     appropriate say  in who sits  on the  certain statutory                                                                    
     benches.  It allows  the governor  to  appoint and  the                                                                    
     legislature  to confirm  who fills  district court  and                                                                    
     appellate  judges.  It  still  allows  the  Council  to                                                                    
     screen and  recommend all candidates, but  the governor                                                                    
     is not mandated to appoint  from only the Bar submitted                                                                    
     list.  The Governor  can nominate  and appoint  his own                                                                    
     Judicial  Council  screened magistrate,  district,  and                                                                    
     appellate judges.                                                                                                          
     HB 82 exercises the  authority expressly granted in the                                                                    
     constitution,  for  the  legislature  and  governor  to                                                                    
     prescribe  how  District  Court  judges  and  Appellant                                                                    
     Court judges are nominated.                                                                                                
1:52:45 PM                                                                                                                    
REPRESENTATIVE  ALLARD  moved  to adopt  the  proposed  committee                                                               
substitute (CS) for HB  82, Version 32-LS0483\B, Gunther/Radford,                                                               
3/4/23, as the  work draft.  There being no  objection, Version B                                                               
was before the committee.                                                                                                       
1:56:49 PM                                                                                                                    
The committee took an at-ease from 1:56 p.m. to 2:00 p.m.                                                                       
2:00:22 PM                                                                                                                    
REPRESENTATIVE RAUSCHER deferred to his staffer, Mr. McKee, to                                                                  
provide a summary of changes in Version B.                                                                                      
2:00:43 PM                                                                                                                    
RYAN MCKEE,  Staff, Representative George Rauscher,  Alaska State                                                               
Legislature,   on  behalf   of  Representative   Rauscher,  prime                                                               
sponsor, provided a  summary of changes in the proposed  CS to HB
82,  Version  B,  which read  as  follows  [original  punctuation                                                               
     1. Title change;                                                                                                           
     Adds: "Selection of magistrates" to tile.                                                                                  
     Adds:  Relating  to  the conduct  of  magistrates;  and                                                                    
     relating   to    the   impeachment,   disqualification,                                                                    
     suspension,   removal,  retirement,   and  censure   of                                                                    
     magistrates, to the title.                                                                                                 
     2. Body of Bill;                                                                                                           
     Removes  magistrates from  the  approval and  rejection                                                                    
     process  on  the  ballot  that  all  other  judges  are                                                                    
     subject to.  Sec 1, Sec 2,  Sec3, Sec 4, Sec  5, Sec 6,                                                                    
     Sec 7, Sec 8, Sec 9, are all eliminated.                                                                                   
     Adds  magistrates   to  the   legislative  confirmation                                                                    
     Streamlines   the   recommendation  process   for   the                                                                    
     Judicial Council;                                                                                                          
          • Version\A had a  two tier system of nominations,                                                                    
          the  Judicial   Council  nominated,  and   if  the                                                                    
          governor did  not like nominations, he  then could                                                                    
          nominate his own.                                                                                                     
          • Version\B both the Governor and Judicial                                                                            
          Council simultaneously nominate on the same time                                                                      
     Eliminates   magistrates  from   the  judicial   report                                                                    
     associated with removal and retention process.                                                                             
     Retains  magistrates  in  the  Commission  on  Judicial                                                                    
     Conduct and impeachment process.                                                                                           
2:02:17 PM                                                                                                                    
REPRESENTATIVE EASTMAN  asked why the  changes in Version  B were                                                               
being proposed.                                                                                                                 
REPRESENTATIVE  RAUSCHER  stated  that  the purpose  was  to  add                                                               
"magistrate"  (indisc.),  which  was omitted  from  the  original                                                               
version of the bill.                                                                                                            
REPRESENTATIVE EASTMAN  attempted to clarify  whether magistrates                                                               
were  being  removed  from  or added  to  the  retention  removal                                                               
2:03:48 PM                                                                                                                    
REPRESENTATIVE RAUSCHER clarified that  Version B would eliminate                                                               
magistrates from the judicial report  associated with the removal                                                               
and  retention   process;  however,  the  proposed   CS  retained                                                               
magistrates   in  the   Commission   on   Judicial  Conduct   and                                                               
impeachment process.                                                                                                            
CHAIR  VANCE welcomed  invited testimony  from former  lieutenant                                                               
governor Loren Leman.                                                                                                           
2:04:49 PM                                                                                                                    
LOREN LEMAN,  former lieutenant governor, stated  his support for                                                               
HB 82.   He shared a personal anecdote  recounting his experience                                                               
as  a freshman  in the  Sixteenth Alaska  State Legislature.   He                                                               
opined that the  process for selecting judges was  a detriment to                                                               
public policy  in Alaska.   He recalled  that the  consultants to                                                               
the  Alaska  Constitutional  Convention [1955-1956]  had  advised                                                               
against  placing power  in the  hands of  a private  professional                                                               
organization.    He remarked  that  that  with the  exception  of                                                               
Justice Craig  Stowers, strict  constructionists had  been denied                                                               
appointment  to the  Alaska  Supreme Court.    He suggested  that                                                               
every governor  since statehood had complained  about the limited                                                               
choices presented to  them.  He argued that although  HB 82 would                                                               
not immediately  solve the imbalance  of judicial  temperament on                                                               
the  Alaska Supreme  Court,  it  would be  a  step  in the  right                                                               
direction.  He  opined that the bill demonstrated  a process with                                                               
better balance  that would work  well for district  and appellate                                                               
courts.   He  urged the  committee to  consider the  legislation,                                                               
advance  it,  and support  the  bill  on  the  House floor.    He                                                               
characterized  HB 82  as a  novel  approach that  would move  the                                                               
judiciary closer to the concept of "We the people."                                                                             
2:11:19 PM                                                                                                                    
REPRESENTATIVE GRAY asked whether the  purpose of the bill was to                                                               
get judges with a more political agenda on the bench.                                                                           
MR. LEMAN asked Representative Gray to clarify the question.                                                                    
REPRESENTATIVE GRAY remarked,  "Do you want people  to think like                                                               
Republicans  to give more of a partisan view of the law?"                                                                       
MR.  LEMAN  shared  his  understanding that  the  intent  was  to                                                               
implement  a   fair  and  balanced  system   for  nominating  and                                                               
selecting judges.   He argued that the existing  system, which he                                                               
termed a "merit  plan," wasn't working.  He added  that under the                                                               
current system, strict constructionists "need not apply."                                                                       
REPRESENTATIVE GRAY  sought to verify  that Mr. Leman  had stated                                                               
that  the intent  was to  [select] judges  that had  no political                                                               
agenda and applied  the law fairly.  He asked  whether that was a                                                               
fair summation.                                                                                                                 
MR.  LEMAN confirmed  that  the  goal was  to  select judges  who                                                               
applied the law fairly.                                                                                                         
2:14:33 PM                                                                                                                    
REPRESENTATIVE  EASTMAN  asked  how   the  jurisprudence  of  the                                                               
justices on the Alaska Supreme  Court compared to other states or                                                               
the U.S. Supreme Court in terms of diversity.                                                                                   
MR. LEMAN opined that the  Alaska Supreme Court was less diverse.                                                               
He  shared  his   belief  that  the  bench   was  lacking  strict                                                               
2:15:59 PM                                                                                                                    
REPRESENTATIVE ALLARD suggested that the  voice of the people was                                                               
not  being  heard  by  the  current  judicial  selection  process                                                               
because elected  officials "had no  say."  She asked  whether Mr.                                                               
Leman agreed with that statement.                                                                                               
MR.   LEMAN  opined   that  the   Alaska  Judicial   Council  was                                                               
effectually making  selections for the governor  by putting forth                                                               
two names, one  of which the governor would never  pick.  He said                                                               
he  would   support  a   provision  requiring   [the  governor's]                                                               
selection to be subject to confirmation by the Senate.                                                                          
REPRESENTATIVE  ALLARD  asked  whether  the  judicial  system  in                                                               
Alaska was imbalanced.                                                                                                          
MR. LEMAN  answered yes,  adding that  the court  was "5-0."   He                                                               
opined that  Alaska would be  better served with a  more balanced                                                               
2:20:27 PM                                                                                                                    
REPRESENTATIVE GRAY inquired about  the meaning of the expression                                                               
"5-0 court."                                                                                                                    
MR.  LEMAN  shared his  belief  that  all  five judges  shared  a                                                               
comparable judicial  philosophy that  was not  based on  a strict                                                               
reading of the Constitution of the State of Alaska.                                                                             
REPRESENTATIVE GRAY  asked Mr.  Leman to  expound on  the uniting                                                               
philosophy  of  the  Alaska  Supreme  Court  and  to  provide  an                                                               
MR.  LEMAN  discussed  the  parental  right  to  privacy,  citing                                                               
Article  1,   Section  22  [Right   of  Privacy]  of   the  state                                                               
2:23:40 PM                                                                                                                    
REPRESENTATIVE GROH  sought to  confirm that  three of  the seven                                                               
members  of the  Alaska Judicial  Council were  appointed by  the                                                               
governor, as provided by the constitution.                                                                                      
MR.  LEMAN responded  yes, adding  that those  members were  also                                                               
confirmed by the legislature.                                                                                                   
REPRESENTATIVE GROH  asked Mr. Leman  to define the  term "strict                                                               
CHAIR VANCE  asked whether this  line of questioning  was germane                                                               
to the bill.                                                                                                                    
REPRESENTATIVE  GROH   understood  that  Mr.  Leman   would  like                                                               
Alaska's judicial system to  select more strict constructionists,                                                               
which was  the basis  for his  support for  the legislation.   He                                                               
sought to understand the meaning of the term.                                                                                   
2:25:07 PM                                                                                                                    
MR.  LEMAN  defined  "strict   constructionist"  as  someone  who                                                               
applied the constitution at face value.                                                                                         
REPRESENTATIVE GROH asked  for examples of cases  that would have                                                               
been  decided differently  had Mr.  Leman's preferred  system for                                                               
judicial selection been in effect.                                                                                              
MR. LEMAN  remarked, "I haven't  made that  list, but I  can tell                                                               
you  that that  particular  initiative passed  by  the people  of                                                               
Alaska by  a large  margin would  have been one  of them  on that                                                               
REPRESENTATIVE GROH pointed out that initiatives were not cases.                                                                
MR. LEMAN indicated that the initiative turned into a case.                                                                     
2:26:58 PM                                                                                                                    
REPRESENTATIVE  EASTMAN asked  whether creating  a law  school in                                                               
Alaska  or changing  the score  required to  pass the  Alaska Bar                                                               
Exam would solve Mr. Leman's concern.                                                                                           
MR.  LEMAN said  offering  more  options would  be  a good  idea;                                                               
however,  he  argued   that  it  would  not   resolve  the  basic                                                               
unfairness in the  system, as the system  for judicial nomination                                                               
and selection was flawed.                                                                                                       
2:30:21 PM                                                                                                                    
FRITZ  PETTYJOHN, former  legislator, noted  that he  had been  a                                                               
member of  the Alaska  Bar Association  (ABA) for  40 years.   He                                                               
stated that  he rejected  the philosophy  that lawyers  should be                                                               
agents  of social  change through  the court  system.   He opined                                                               
that  an overwhelming  majority of  ABA members  favored judicial                                                               
activism,  as opposed  to  judicial restraint.    He argued  that                                                               
there was no  balance or diversity in the  Alaska judicial system                                                               
resulting  in a  court system  that injected  itself into  public                                                               
policy.  He believed that  the judicial system should be confined                                                               
to interpreting the law.  He defined  the bill as a small step in                                                               
the right direction.   He expressed his hope that  in the future,                                                               
the state constitution would be  amended to allow the legislature                                                               
and the governor  some control over the selection of  judges.  He                                                               
encouraged the committee to pass the bill.                                                                                      
CHAIR VANCE inquired about the dangers of uniformity.                                                                           
MR.  PETTYJOHN stated  that judicial  conservatives like  himself                                                               
were not represented on the  Alaska Supreme Court.  He emphasized                                                               
the  need  for  diverse  philosophies,  adding  that  ideological                                                               
conformity was being  enforced by the ABA.   He characterized the                                                               
ABA as a group of self-interested  lawyers who get to control who                                                               
becomes a judge.                                                                                                                
2:38:47 PM                                                                                                                    
REPRESENTATIVE GRAY  asked how changing Alaska's  judicial system                                                               
to conform with  the Lower-48 or the Federal  Judiciary would bar                                                               
judges [with a  certain philosophy], like Ruth  Bader Ginsburg or                                                               
Clarence Thomas.                                                                                                                
MR. PETTYJOHN said he did not understand the question.                                                                          
REPRESENTATIVE GRAY  asked how HB  82 would make the  system less                                                               
MR.  PETTYJOHN  said  he  would  like to  see  more  judges  like                                                               
Clarence  Thomas on  the Alaska  Supreme Court.   Conversely,  he                                                               
proclaimed  that Ruth  Bader Ginsburg  believed in  advancing her                                                               
conception of social  justice through the court  system, which he                                                               
disagreed  with; consequently,  he said,  he would  oppose judges                                                               
who shared the same political philosophy as Ms. Ginsburg.                                                                       
REPRESENTATIVE  GRAY asked  how the  Alaska Supreme  Court lacked                                                               
MR.  PETTYJOHN said,  "Just read  their opinions."   He  asserted                                                               
that the  record of  the Alaska  Supreme Court  over the  past 40                                                               
years  showed  a  history  of   expanding  their  own  power  and                                                               
restricting  the  power  of the  legislature,  the  governor  and                                                               
thereby, the people of Alaska.                                                                                                  
REPRESENTATIVE GRAY asked whether  past decisions would have been                                                               
different  if more  judges like  Clarence Thomas  had sat  on the                                                               
MR. PETTYJOHN exclaimed, "Of course there would be."                                                                            
2:42:37 PM                                                                                                                    
REPRESENTATIVE  ALLARD remarked,  "Are you  stating that  because                                                               
there  are more  Judge Ginsburg    are  you telling  us that  the                                                               
court system leans  more towards that because  you believe that's                                                               
who sits on the court system now?"                                                                                              
MR.  PETTYJOHN answered,  "That is  the way  the court  system is                                                               
now.   That's  because the  way  the Alaska  Bar Association  has                                                               
determined the  court system will  be through its power  over the                                                               
judicial selection."                                                                                                            
2:44:26 PM                                                                                                                    
REPRESENTATIVE  ALLARD  asked  whether there  were  instances  in                                                               
which the  court had  interpreted state  law in  contradiction to                                                               
the legislative intent.                                                                                                         
MR. PETTYJOHN asserted that [the  Alaska Supreme Court] primarily                                                               
"perverted"  the constitution  to  expand their  own  power.   He                                                               
shared an example of judicial activism.                                                                                         
2:46:00 PM                                                                                                                    
REPRESENTATIVE GROH asked whether Mr.  Pettyjohn had ever taken a                                                               
poll  of practicing  lawyers across  the state  to determine  the                                                               
diversity of their attitudes.                                                                                                   
MR.  PETTYJOHN  recounted  a   personal  anecdote  regarding  the                                                               
Anchorage Bar Association and the  legalization of marijuana.  He                                                               
explained that  after practicing law  in Alaska for 41  years, he                                                               
found the ABA to be  overwhelmingly liberal, left wing, democrat,                                                               
and [full of] judicial activists.                                                                                               
CHAIR VANCE  asked the  bill sponsor whether  the purpose  of the                                                               
bill  was  to allow  the  legislature  to  have  a voice  in  the                                                               
appointment of judges and judicial officers.                                                                                    
2:48:56 PM                                                                                                                    
REPRESENTATIVE  RAUSCHER likened  the judicial  selection process                                                               
to legislators picking  the next legislators.  He  added that the                                                               
goal  was to  implement a  comprehensive system  with checks  and                                                               
balances.  He  emphasized that the goal was not  implement a more                                                               
progressive   or  conservative   ideology,  reiterating   that  a                                                               
balanced system was the goal.                                                                                                   
CHAIR VANCE announced that HB 82 was held over.                                                                                 

Document Name Date/Time Subjects
HB 82 - Sponsor Statement.pdf HJUD 3/6/2023 1:30:00 PM
HJUD 3/8/2023 1:00:00 PM
HB 82
HB 82 - v.A.PDF HJUD 3/6/2023 1:30:00 PM
HJUD 3/8/2023 1:00:00 PM
HB 82
HB 82 - Sectional Analysis.pdf HJUD 3/6/2023 1:30:00 PM
HJUD 3/8/2023 1:00:00 PM
HB 82
HB 82 - PROPOSED CS v.B.pdf HJUD 3/6/2023 1:30:00 PM
HJUD 3/8/2023 1:00:00 PM
HB 82
HB 28 - Sponsor Statement.pdf HJUD 3/8/2023 1:00:00 PM
HJUD 4/14/2023 1:00:00 PM
SFIN 4/23/2024 1:30:00 PM
HB 28
HB 28 - v.A.PDF HJUD 3/1/2023 1:00:00 PM
HJUD 3/8/2023 1:00:00 PM
HJUD 4/14/2023 1:00:00 PM
HB 28
HB 28 - Sectional Analysis.pdf HJUD 3/1/2023 1:00:00 PM
HJUD 3/8/2023 1:00:00 PM
HJUD 4/14/2023 1:00:00 PM
HB 28
HB 28 - Support Letter.pdf HJUD 3/1/2023 1:00:00 PM
HJUD 3/8/2023 1:00:00 PM
HJUD 4/14/2023 1:00:00 PM
SFIN 4/23/2024 1:30:00 PM
HB 28
HB 28 - AMIA Support for HB 28 - 2.9.23.pdf HJUD 3/1/2023 1:00:00 PM
HJUD 3/8/2023 1:00:00 PM
HJUD 4/14/2023 1:00:00 PM
HB 28