Legislature(2013 - 2014)BUTROVICH 205
04/12/2013 09:00 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SCR3 | |
| HB63 | |
| HB57 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 51 | TELECONFERENCED | |
| += | HB 63 | TELECONFERENCED | |
| += | SCR 3 | TELECONFERENCED | |
| + | HB 57 | TELECONFERENCED | |
HB 63-EXTEND BAR ASS'N BOARD OF GOVERNORS
CHAIR COGHILL announced the consideration of HB 63. "An Act
relating to the Board of Governors of the Alaska Bar
Association; and providing for an effective date." [CSHB 63(FIN)
was before the committee.]
9:19:46 AM
CECILE ELLIOTT Staff, Representative Mike Hawker, sponsor of HB
63, explained that the bill would extend the Board of Governors
of the Alaska Bar Association (ABA) until June 30, 2021, as
recommended by the legislative auditor. The agency found that
the board protects the public interest by ensuring that people
licensed to practice law are qualified. She continued to explain
that Section 2 contains conforming language to clarify that at
large members are elected in the same way as other board
members. Section 3 requires that members of board complete the
voluntary continuing legal education (CLE) credits as set out in
the Alaska Bar Rules. She noted that the House Judiciary
Committee prepared a letter of intent to support continued CLEs.
She highlighted the one continuing recommendation of the
legislative auditor was to increase the CLE requirements for
attorneys.
9:21:37 AM
SENATOR MCGUIRE asked Ms. Elliott if the Legislative Budget and
Audit report made any other recommendations.
MS. ELLIOTT replied that the one recommendation was to increase
CLEs.
CHAIR COGHILL commented that the report also recommended the new
June 30, 2021 termination date.
9:22:26 AM
SENATOR WIELECHOWSKI asked if the sponsor had addressed the
4/9/13 legal opinion from Legislative Legal Services that says
the legislature cannot statutorily set a certain number of
continuing CLE hours for attorney licensure because it would
violate the separation of powers doctrine.
MS. ELLIOTT said no.
CHAIR COGHILL suggested that Steve Van Goor could help with the
question.
9:23:10 AM
SENATOR OLSON joined the committee.
9:23:22 AM
STEVE VAN GOOR, Bar Counsel, Alaska Bar Association, confirmed
that the court has the ability to set the number of CLE hours
that lawyers licensed in Alaska are required to meet. He
continued to say that while a separation of powers argument
could be made, the ABA understands the purpose of Section 3 is
for attorney members of the board to set a good example with
regard to CLEs.
SENATOR WIELECHOWSKI agreed that the Board of Governors should
set an example, but questioned whether the requirement would
violate the Alaska Constitution.
MR. VAN GOOR agreed that the court adopts rules of procedure and
substantive rules of conduct under its inherent authority in
Section 4.1 of the Alaska Constitution. He acknowledged that a
separation of powers argument could be made, but given the
intent of Section 3 it didn't seem worth the fight.
SENATOR WIELECHOWSKI observed that it's a question of whether a
violation of the Alaska Constitution is worth fighting.
CHAIR COGHILL suggested Ms. Meade could add to the discussion.
9:26:06 AM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, said the court
doesn't take a position on that particular provision, but
Senator Wielechowski raised a valid question. The committee is
aware of the issue so it's a policy call whether to put it in
statute or not.
CHAIR COGHILL commented that it appears to be more a balance of
power discussion between the court and legislature than a
separation of powers issue.
He questioned whether the nine members of the board should be
confirmed by the legislature. [The question and subsequent
discussion related to an amendment, labeled 28-LS0309\O.2, that
was not offered.]
MR. VAN GOOR said he couldn't think of an example of an elected
local, state, or federal official that also stood for
confirmation by their respective legislative body. He cited
examples of the mayor of Anchorage, the governor, and the
President of the United States.
He referenced Section 4.10 of the Alaska Constitution regarding
the Commission on Judicial Conduct and highlighted that the
public members are appointed by the governor and subject to
confirmation, the attorney members appointed by the board are
subject to confirmation, but the judges and justices who serve
are elected by their fellow judges and justices and are not
subject to confirmation.
MR. VAN GOOR said the ABA isn't interested in making public
office difficult for public members to hold and it's certainly
unfortunate if public members have been subjected to a type of
cross examination unrelated to their fitness for the appointed
position.
9:32:45 AM
CHAIR COGHILL characterized the Board of Governors of the Alaska
Bar Association as cartel like. Public members face a different
type of scrutiny but serve equally on that board. He asked about
the openness of the election process.
MR. VAN GOOR explained that it's open to any active member of
the bar who wants to serve. The board is divided into three
districts: the combined second and fourth judicial districts;
the third judicial district in Southcentral; and the first
judicial district in Southeast. One member is elected by the
membership statewide. The letters of intent are published and
the individual runs for office like any other elected official.
CHAIR COGHILL expressed interest in further discussions because
public members seemed to face different scrutiny.
9:35:21 AM
SENATOR DYSON asked for written information about how the
process in Alaska compares to other states.
MR. VAN GOOR agreed to provide the information.
SENATOR MCGUIRE suggested that it would probably be helpful if
the chair was given a general overview of the Alaska Bar
Association and how it is different.
MR. VAN GOOR reiterated that the ABA would be happy to provide
the information.
9:38:53 AM
THOMAS S. OBERMEYER, SR., representing himself, Anchorage,
Alaska, stated that he has been licensed to practice law in the
state of Missouri for 23 years and has been required to take 15
hours of CLE and 2 hours of ethics every year. This is far in
excess of the Alaska Bar Association requirements, yet passage
rates on the ABA exam are remarkably low compared to Missouri
and other states. He offered his belief that the Alaska bar exam
is not a test of minimal competence; it's a test of varying
standards and exclusion that serves to restrain trade. He
maintained that the ABA can set the passage rates based on the
essays, although there is some discussion about transitioning to
the Uniform Bar Examination. He relayed that the many practicing
attorneys he contacted throughout the state said they found the
exam itself had very little to do with their practice of law. He
said he was denied reciprocity from Missouri under Alaska Bar
Rule 2.2(b)3, which says a person who has failed the bar exam in
the last five years cannot be admitted. He maintained that this
standard isn't uniform, because others in similar situations
have not been denied.
MR. OBERMEYER asked the committee to deny the eight-year sunset
extension for the Board of Governors of the Alaska Bar
Association. In the past the extension was four years and he
would suggest no more than a two-year extension.
SENATOR MCGUIRE asked Mr. Van Goor why Mr. Obermeyer was being
denied reciprocity when others are not.
MR. VAN GOOR explained that the bar rule regarding reciprocity
admission has a public protection basis. Originally it said an
individual who has taken and failed an Alaska bar examination
would never qualify for reciprocity. That rule was changed to
say a person cannot apply for reciprocity admission if the
person has taken and failed any bar examination within five
years. Mr. Obermeyer is not being singled out; it is a
requirement that would apply to any person seeking admission
from a reciprocal state.
SENATOR MCGUIRE asked if the ABA was considering the universal
multi-state test in lieu of the essay.
MR. VAN GOOR responded that Justice Daniel Winfree asked the
board to look at the Uniform Bar Examination (UBE), which has
been proposed by the National Conference of Bar Examiners. It
consists of the multi-state bar exam, the multi-state
performance test, and the multi-state essay examination. In
addition, an applicant for admission to the ABA has to pass the
multi-state professional responsibility exam. The difference
between the UBE and the current exam is that the essay and
performance portions would be drafted by the National Conference
of Bar Examiners. The grading would continue to be done in
Alaska except for the multiple choice portion which would be
graded by the National Conference of Bar Examiners.
MR. VAN GOOR said it's also important to keep in mind that the
ABA does not restrict the number of times a person may sit for
the Alaska Bar exam. For 2010-2012, the overall passage rate was
65 percent. For first time takers the passage rate was 77
percent, but for re-applicants the passage rate was 32 percent.
The Alaska Bar exam is excellent and in the bar's opinion it
works.
9:52:16 AM
SENATOR WIELECHOWSKI expressed concern with Section 3 and the
legal opinion that "a statute prescribing required CLE hours
would violate the separation of powers doctrine." He asked the
chair if he would consider removing that section from the bill.
CHAIR COGHILL offered his belief that it was within reason, and
that it was worth pushing the legal debate.
SENATOR WIELECHOWSKI quipped that could be an example of
legislative overreach that needed a task force.
CHAIR COGHILL opined that it pushes against the right edge.
9:54:31 AM
SENATOR MCGUIRE offered her belief that it was wrong to say that
there is no opportunity for the state to reach in and ask for
higher standards.
CHAIR COGHILL said that as long as he was chair he wasn't
opposed to continuing the discussion.
SENATOR WIELECHOWSKI clarified that he was not arguing that it
wasn't a good idea to hold the members to a higher standard; he
was arguing that Section 3 goes against a legal opinion. The
chair specifically asked legislative counsel if the legislature
can statutorily direct the Board to require certain CLEs. The
legal opinion specifically said that "a statute prescribing
required CLE hours would violate the separation of powers
doctrine."
9:57:49 AM
SENATOR MCGUIRE moved to report CS for HB 63, version O, from
committee [with individual recommendations] and attached zero
fiscal note.
9:58:07 AM
CHAIR COGHILL objected to say he tips his hat to the attorneys
that work with the Board of Governors and do continuing
education and pro bono work. He removed the objection.
9:58:36 AM
CHAIR COGHILL announced that, without objection, CSHB 63(FIN)
moved from Senate Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Legal Memo April 9 2013 re Board of Governors.pdf |
SJUD 4/12/2013 9:00:00 AM |
HB 63 |
| Letter from t Obermeyer 4 11 2013 HB 63.pdf |
SJUD 4/12/2013 9:00:00 AM |
HB 63 |
| Email from T. Obermeyer - HB 63.pdf |
SJUD 4/12/2013 9:00:00 AM |
HB 63 |