Legislature(2013 - 2014)BELTZ 105 (TSBldg)

02/26/2014 01:30 PM Senate JUDICIARY


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01:34:18 PM Start
01:35:03 PM SJR21
02:50:59 PM Confirmation Hearings
02:55:45 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 136 UNMANNED AIRCRAFT SYSTEMS TELECONFERENCED
Scheduled But Not Heard
+ Confirmation Hearing: TELECONFERENCED
Select Committee on Legislative Ethics
Christena Williams & Janie Leask
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SJR 21 CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
Moved CSSJR 21(JUD) Out of Committee
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                       February 26, 2014                                                                                        
                           1:34 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator John Coghill, Chair                                                                                                     
Senator Lesil McGuire, Vice Chair                                                                                               
Senator Fred Dyson                                                                                                              
Senator Donald Olson                                                                                                            
Senator Bill Wielechowski                                                                                                       
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 136                                                                                                             
"An Act relating to unmanned aircraft systems; and relating to                                                                  
images captured by an unmanned aircraft system."                                                                                
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
SENATE JOINT RESOLUTION NO. 21                                                                                                  
Proposing amendments to  the Constitution of the  State of Alaska                                                               
to increase  the number  of members on  the judicial  council and                                                               
relating to  the initial  terms of new  members appointed  to the                                                               
judicial council.                                                                                                               
                                                                                                                                
     - MOVED CSSJR 21(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
CONFIRMATION HEARINGS:                                                                                                          
                                                                                                                                
     Select Committee on Legislative Ethics                                                                                 
          Christena Williams - Alternate public member                                                                          
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
     Select Committee on Legislative Ethics                                                                                 
          Janie Leask - Public member                                                                                           
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SJR 21                                                                                                                  
SHORT TITLE: CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL                                                                          
SPONSOR(s): SENATOR(s) KELLY                                                                                                    
                                                                                                                                
02/10/14       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/10/14       (S)       JUD                                                                                                    
02/14/14       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/14/14       (S)       Heard & Held                                                                                           
02/14/14       (S)       MINUTE(JUD)                                                                                            
02/17/14       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/17/14       (S)       Scheduled But Not Heard                                                                                
02/21/14       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/21/14       (S)       Heard & Held                                                                                           
02/21/14       (S)       MINUTE(JUD)                                                                                            
02/24/14       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/24/14       (S)       Heard & Held                                                                                           
02/24/14       (S)       MINUTE(JUD)                                                                                            
02/26/14       (S)       MINUTE(JUD)                                                                                            
                                                                                                                                
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
JUSTICE WALTER CARPENETI (retired), representing himself                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Testified in opposition to SJR 21.                                                                        
                                                                                                                                
SUSANNE DI PIETRO, Executive Director                                                                                           
Alaska Judicial Council                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Answered questions related to SJR 21.                                                                     
                                                                                                                                
SENATOR PETE KELLY                                                                                                              
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Sponsor of SJR 21.                                                                                        
                                                                                                                                
CHRISTENA WILLIAMS, representing herself                                                                                        
Ketchikan, Alaska                                                                                                               
POSITION STATEMENT: Appointee to the Select Committee on                                                                      
Legislative Ethics.                                                                                                             
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:34:18 PM                                                                                                                    
CHAIR JOHN COGHILL called the Senate Judiciary Standing                                                                       
Committee meeting to order at 1:34 p.m. Present at the call to                                                                  
order  were  Senators  Wielechowski,   Olson,  Dyson,  and  Chair                                                               
Coghill.                                                                                                                        
                                                                                                                                
        SJR 21-CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL                                                                    
                                                                                                                                
1:35:03 PM                                                                                                                    
CHAIR COGHILL  announced the consideration of  SJR 21. "Proposing                                                               
amendments  to  the  Constitution  of  the  State  of  Alaska  to                                                               
increase  the  number of  members  on  the judicial  council  and                                                               
relating to  the initial  terms of new  members appointed  to the                                                               
judicial council." [Version N was before the committee.]                                                                        
                                                                                                                                
1:36:29 PM                                                                                                                    
WALTER  CARPENETI,   retired  judge  and  former   chief  justice                                                               
representing himself,  thanked the  committee for taking  so much                                                               
time on  such an  important issue.  He said  he would  make three                                                               
points regarding SJR  21: 1) there is no demonstrated  need for a                                                               
change; 2)  the present system  balances the  competing interests                                                               
and extreme  care should  be taken before  changing that;  and 3)                                                               
the proposal creates problems that are worth considering.                                                                       
                                                                                                                                
With regard to no demonstrated  need, he stressed that the Alaska                                                               
Constitution is  widely respected.  It has  been amended  just 28                                                               
times and  a lot of  those were technical.  He said he  looked to                                                               
the sponsor statement  to find out why the  sponsor was proposing                                                               
this and he didn't  think it was any reason at all  to say that a                                                               
number  of  other states  do  this.  He  urged the  committee  to                                                               
instead look for positive reasons to make a change.                                                                             
                                                                                                                                
The second  reason stated was  that the state is  growing. That's                                                               
true, he said,  but the size of the  legislature hasn't increased                                                               
and  that's not  a specific  reason that  demonstrates a  problem                                                               
with the present system.                                                                                                        
                                                                                                                                
He said  the third reason  was regional diversity, and  he didn't                                                               
understand  that   because  the  constitution   already  requires                                                               
governors  to  make appointments  with  due  regard for  regional                                                               
diversity and the governors do that.                                                                                            
                                                                                                                                
The fourth reason was to reduce  the likelihood of tie votes, but                                                               
the facts belie  the importance of that. First,  tie votes happen                                                               
infrequently and the  instances when all the  public members were                                                               
on one side  and all the lawyers on the  other side only occurred                                                               
in  about  one  percent  of the  votes.  Furthermore,  the  chief                                                               
justice has sided with the  lawyers only slightly more often than                                                               
when  the  chief  justice  has sided  with  the  public  members.                                                               
Looking at the big picture, he  said it's an unpersuasive case to                                                               
say that the  system has to be changed when  it's worked well for                                                               
55 years.                                                                                                                       
                                                                                                                                
The final reason mentioned in  the sponsor statement was to avoid                                                               
conflicts  of  interest.  He  said   he  didn't  understand  that                                                               
statement  because there  isn't any  conflict of  interest for  a                                                               
chief justice  to break a tie  any more than there  is a conflict                                                               
for  a supreme  court member  to break  a tie  against a  sitting                                                               
superior court  judge or  a sitting court  of appeals  judge. The                                                               
court's  business is  to  review  the work  of  those judges  and                                                               
sometimes they're affirmed and sometimes they're reversed.                                                                      
                                                                                                                                
JUSTICE  CARPENETI said  he didn't  see that  the reasons  in the                                                               
sponsor statement amount to a  reason to change the constitution.                                                               
That being said,  what is really missing is a  statement that the                                                               
system is  broken; that  too many judges  are being  indicted for                                                               
corruption or  taking kickbacks. That isn't  happening in Alaska.                                                               
He admitted  he was  biased, but  challenged anyone  who supports                                                               
SJR  21 to  give a  positive reason  as to  how the  judiciary is                                                               
failing.                                                                                                                        
                                                                                                                                
1:42:45 PM                                                                                                                    
JUSTICE CARPENETI referenced Mr.  Pauley's earlier testimony that                                                               
two of the  five seats on the current Supreme  Court were held by                                                               
people who came  through a Judicial Council in which  there was a                                                               
3:3  tie with  all the  lawyers on  one side  and all  the public                                                               
members on  the other side and  the chief justice voted  "no." He                                                               
said he looked  at the vote he wasn't involved  in and found that                                                               
12 people  applied and four  nominees were sent to  the governor.                                                               
He opined  that sending  one-third of the  applicants was  a good                                                               
number. He said he was the  chief justice who cast a tie breaking                                                               
"no" vote in the other instance  when just 2 of the 12 applicants                                                               
were sent  to the governor.  He related  that it was  a difficult                                                               
decision  because  the candidate  that's  been  referenced was  a                                                               
qualified judge who could have done  the job. In fact, that judge                                                               
previously applied  for a position  on the Supreme Court  and his                                                               
name was sent to the governor.                                                                                                  
                                                                                                                                
He  said  the  answer  to  why that  applicant's  name  would  be                                                               
forwarded one  time and not  another is in the  constitution. The                                                               
convention delegates  talked about a Judicial  Council that would                                                               
be made up of lawyers who  knew which lawyers were good and which                                                               
were bad  and public members  who could act  as a check  and give                                                               
the broad every man's view.  The Council was charged with sending                                                               
the very best or "the  tallest timber," and from that perspective                                                               
it isn't inconsistent  that a particular person can  be among the                                                               
best  if that  category is  expanded  to 7  out of  17, but  that                                                               
person  might not  make it  when there  are 12  applicants and  2                                                               
stand head and shoulders above the rest.                                                                                        
                                                                                                                                
He concluded  his comments  with an expression  of hope  that the                                                               
committee would  take into consideration the  question of whether                                                               
or not the Judicial Council has  failed in the past before making                                                               
a decision to change a constitution that has served so well.                                                                    
                                                                                                                                
1:46:29 PM                                                                                                                    
CHAIR COGHILL  opined that  the listening  public needed  to hear                                                               
how  the system  works  and  that he'd  been  fairly generous  in                                                               
creating that record. He thanked Justice Carpeneti.                                                                             
                                                                                                                                
1:47:24 PM                                                                                                                    
SENATOR DYSON asked Justice Carpeneti  to rebut the argument that                                                               
the  Bar   Association  is  a   collective  of  values   that  it                                                               
consciously  or unconsciously  wants  to  perpetuate. That's  the                                                               
view of some  constituents and what makes  the system suboptimal,                                                               
he said.                                                                                                                        
                                                                                                                                
JUSTICE  CARPENETI  said  he  wouldn't defend  the  way  all  Bar                                                               
Association members vote in every poll,  but he would say that 99                                                               
percent  of  the cases  that  come  before  all the  courts  have                                                               
nothing  to do  with political  issues. Rather,  they have  to do                                                               
with what the legislature meant  when it passed legislation, what                                                               
the  framers  meant  when  they   put  the  principles  into  the                                                               
constitution, and  figure out how regulations  fit with statutes.                                                               
What lawyers  want is  people on  the bench who  are going  to do                                                               
their homework,  read the  briefs, read  the statutes,  puzzle it                                                               
out, and not come with a prefixed idea, he said.                                                                                
                                                                                                                                
CHAIR COGHILL  interjected that he  wanted time to hear  from the                                                               
executive director of the Judicial Council and the sponsor.                                                                     
                                                                                                                                
SENATOR DYSON  said a  very well respected  lawyer in  this state                                                               
who  has litigated  abortion-related questions  has never  gotten                                                               
through the process  and there is great concern  among people who                                                               
share  his perspective  of human  rights that  a warrior  who has                                                               
taken  on  those  cases  will  never  get  through  the  Judicial                                                               
Council.                                                                                                                        
                                                                                                                                
JUSTICE CARPENETI suggested  he look at the whole  record in that                                                               
case and  decide whether  or not he  wanted an  incredibly strong                                                               
advocate on the bench who  had taken numerous public positions on                                                               
issues that come  before courts all the time. He  relayed that he                                                               
was on  the Judicial Council  both times that person  applied and                                                               
there was  never a  tie because the  applicant couldn't  get even                                                               
three votes.                                                                                                                    
                                                                                                                                
CHAIR COGHILL said his perception  was that judges who have taken                                                               
strong  positions in  support of  Planned Parenthood  have sailed                                                               
through the process.                                                                                                            
                                                                                                                                
JUSTICE CARPENETI  said he could only  speak to the times  he was                                                               
on the Judicial Council.                                                                                                        
                                                                                                                                
CHAIR COGHILL  mentioned instances in the  past, including recent                                                               
the  testimony from  a former  judge who  impugned some  members'                                                               
motives, to illustrate what causes him to bristle.                                                                              
                                                                                                                                
SENATOR MCGUIRE thanked Justice Carpeneti  for his service to the                                                               
state  and apologized  that he  was coming  before the  committee                                                               
when  there was  a time  constraint.  She relayed  that when  she                                                               
commented on  the legislation initially she  highlighted that his                                                               
tie-breaking votes  were consistently  on the public  side, which                                                               
she appreciates.  She said this  bill is important  because there                                                               
is a  perception, especially in  the last four years,  that there                                                               
has been  a collective rejection  of the public in  the selection                                                               
process.  She  described the  proposal  as  a calculated  way  of                                                               
giving  the public  membership more  weight, and  questioned what                                                               
harm it could do to add more public members.                                                                                    
                                                                                                                                
1:56:21 PM                                                                                                                    
JUSTICE  CARPENETI recalled  that when  he broke  the 3:3  tie in                                                               
favor  of sending  the name  to the  governor it  was because  he                                                               
thought in each  case that the applicant fit in  the group of the                                                               
best qualified. The one time  he couldn't come to that conclusion                                                               
he  voted "no."  Addressing  the  question of  harm,  he said  he                                                               
worries  about  moving  to  a system  where  the  knowledge,  the                                                               
expertise, and the  experience of people who  have worked day-to-                                                               
day with  their lawyer colleagues  comes to count very  little in                                                               
the selection  of judges. If that  happens, there is a  risk that                                                               
what fills  that place is not  only people that don't  know these                                                               
people very well,  but people who are looking for  judges who are                                                               
going to give a particular result.                                                                                              
                                                                                                                                
He offered  an anecdote  and opined  that only  in a  system like                                                               
this  where judges  don't  discuss their  political  views is  it                                                               
possible for  two justices  who worked together  for a  number of                                                               
years not  to know the answer  when asked if Justice  X was still                                                               
as conservative as he was 30  years ago. He reiterated his belief                                                               
that it's dangerous  to move the political part  of the selection                                                               
earlier into the merit selection.                                                                                               
                                                                                                                                
1:59:51 PM                                                                                                                    
SENATOR DYSON  mentioned the case  where a judge  interpreted the                                                               
privacy  clause  to give  children  the  right to  get  abortions                                                               
without  the knowledge  of their  parents, and  said he  couldn't                                                               
imagine that  kind of view  of the  law and the  constitution. He                                                               
said  he  wouldn't   call  his  view  political,   but  rather  a                                                               
principled belief in some kind of transcendent truth.                                                                           
                                                                                                                                
JUSTICE  CARPENETI  summarized how  he  voted  in that  case  and                                                               
stated that  he respected  his colleagues who  were on  the other                                                               
side and the  process by which they got there.  He reiterated his                                                               
belief that the  state is better off with a  process that doesn't                                                               
try to  find out how a  judicial candidate will vote  because the                                                               
essence of judging is to take  the law that's been established by                                                               
others and apply it to individual cases.                                                                                        
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if  the Judicial  Council ever  asks                                                               
questions  about social  issues such  as abortion  or gay  rights                                                               
when evaluating judicial candidates.                                                                                            
                                                                                                                                
JUSTICE CAPRENETI answered no.                                                                                                  
                                                                                                                                
SENATOR WIELECHOWSKI  asked if  it would  be appropriate  for the                                                               
Judicial Council to ask that sort of question.                                                                                  
                                                                                                                                
JUSTICE CAPRENETI replied he didn't  think it was appropriate for                                                               
the  Judicial  Council  to  ask   and  he  didn't  think  it  was                                                               
appropriate for judges  to commit themselves before  a case comes                                                               
to them. It does a disservice to the litigants.                                                                                 
                                                                                                                                
2:03:45 PM                                                                                                                    
SENATOR  OLSON highlighted  that the  data  he had  shows 15  tie                                                               
votes in  the last 30  years; the  chief justice joined  with the                                                               
attorneys 10  times and with  the public members 5  times. What's                                                               
even more troubling,  he said, is that  4 or 5 times  in the last                                                               
several  years  the chief  justice  has  always joined  with  the                                                               
attorneys.                                                                                                                      
                                                                                                                                
JUSTICE CARPENETI replied he would  stand corrected if the number                                                               
was  10 to  5 rather  than 9  to 6  as he  thought. For  the more                                                               
recent votes he  recalled 3 tie votes: 2 times  he voted with the                                                               
public members to  send a name on  to the governor and  1 time he                                                               
voted not  to send the  name on. Nevertheless, the  greater point                                                               
is that  it is  a very  small percentage out  of 1,163  votes, he                                                               
said.                                                                                                                           
                                                                                                                                
SENATOR OLSON asked  if he would support  amending the resolution                                                               
to remove the chief justice as  a voting member. If there's a tie                                                               
vote the name goes on to  the governor to decide. He continued to                                                               
say that  his real  problem was  that the  judiciary has  sent an                                                               
overrepresentation  of  Natives  to prison.  Furthermore,  in  55                                                               
years only  one Native has served  on the bench, only  one public                                                               
member of the Judicial Council has  been a rural Native, and none                                                               
of the attorney members come from a rural area.                                                                                 
                                                                                                                                
JUSTICE  CARPENETI replied  there  won't be  Native judges  until                                                               
there are Native lawyers and  there won't be Native lawyers until                                                               
more Natives go to law school.  He said the Court System has been                                                               
working to  get out of  state law schools  to set up  programs in                                                               
Alaska that  would draw people in  from the rural areas,  and the                                                               
Seattle Law School is now doing that.                                                                                           
                                                                                                                                
SENATOR OLSON  reviewed the pictures of  currently serving judges                                                               
and  commented  that one  problem  is  that there's  no  minority                                                               
sector representation. Not one is an Alaska Native.                                                                             
                                                                                                                                
JUSTICE CARPENETI responded  that it's not for lack  of trying by                                                               
the Court System and Judicial Council.                                                                                          
                                                                                                                                
CHAIR COGHILL  said that shows  the multifaceted element  of this                                                               
question.  He observed  that it's  been represented  that lawyers                                                               
have  a better  view of  the judicial  system in  Alaska, but  he                                                               
believes  that  the  public  members  deserve  more  credit  than                                                               
they've been getting.  He continued to say  that this committee's                                                               
interest  is whether  the system  is  working "with  the kind  of                                                               
input that we would like to see from Alaska."                                                                                   
                                                                                                                                
2:10:23 PM                                                                                                                    
SENATOR  WIELECHOWSKI asked  the  executive  director to  discuss                                                               
judicial candidate  rejections. He  offered his  understanding of                                                               
the  October 2013  opening for  the Fairbanks  District Court  in                                                               
which  three members  were nominated.  There  was a  tie and  the                                                               
chief justice voted  against sending that applicant's  name on to                                                               
the governor.  He said  he also  understands that  that applicant                                                               
had  a lower  ABA survey  score than  the applicants  whose names                                                               
were sent on to the governor. He asked if that was accurate.                                                                    
                                                                                                                                
SUSANNE  DIPIETRO, Executive  Director, Alaska  Judicial Council,                                                               
affirmed  that   was  accurate.   She  reiterated   her  previous                                                               
testimony that  a number of performance  measures are considered,                                                               
but  the  Bar   survey  scores  are  correlated   with  a  higher                                                               
likelihood of nomination and better performance on the bench.                                                                   
                                                                                                                                
SENATOR WIELECHOWSKI  offered his  understanding of  the December                                                               
2012  Alaska  Supreme Court  opening  where  two names  were  not                                                               
forwarded and two  names were forwarded. He asked if  it was fair                                                               
to  say that  the  Bar  survey scores  for  the  people who  were                                                               
forwarded were  fairly significantly  higher than the  Bar survey                                                               
scores of those that weren't forwarded.                                                                                         
                                                                                                                                
MS. DIPIETRO agreed that was fair to say.                                                                                       
                                                                                                                                
SENATOR  WIELECHOWSKI offered  his  understanding  of the  August                                                               
2012 Anchorage Superior Court opening.  Five names were forwarded                                                               
to the governor and the person  who received a "no" vote from the                                                               
Judicial  Council had  a "below  acceptable" score.  He asked  if                                                               
that was a fair statement.                                                                                                      
                                                                                                                                
MS.  DIPIETRO affirmed  that the  applicant's overall  rating was                                                               
"below acceptable."                                                                                                             
                                                                                                                                
SENATOR  WIELECHOWSKI  offered  his understanding  that  for  the                                                               
Alaska  Supreme  Court opening  in  June  2012 the  same  nominee                                                               
received  a "below  acceptable" score  but  there was  not a  tie                                                               
vote. There was  a tie vote on another person  who ultimately did                                                               
not have  their name forwarded;  that person's ABA  survey scores                                                               
were lower  than the  two people whose  names were  forwarded. He                                                               
asked if that was correct.                                                                                                      
                                                                                                                                
MS. DIPIETRO replied that was largely correct.                                                                                  
                                                                                                                                
SENATOR  WIELECHOWSKI  offered  his understanding  that  for  the                                                               
Bethel  Superior Court  opening  in August  2012  two names  were                                                               
forwarded.  In one  case  there  was a  tie  vote  and the  chief                                                               
justice voted in  favor of forwarding the name. He  asked if that                                                               
was accurate.                                                                                                                   
                                                                                                                                
MS. DIPIETRO answered that was correct.                                                                                         
                                                                                                                                
SENATOR WIELECHOWSKI stated agreement  with Senator Olson that he                                                               
would  enjoy seeing  more diversity  on the  court. He  asked Ms.                                                               
DiPietro if  the Judicial Council  has data to indicate  there is                                                               
an  issue  with  attorney  and public  members  of  the  Judicial                                                               
Council rejecting Native attorneys who apply.                                                                                   
                                                                                                                                
MS. DIPIETRO  said that Native  attorneys represent a  very small                                                               
percentage of  the Bar,  but there  is little  difference between                                                               
the  rate at  which  they apply  and the  rate  at which  they're                                                               
nominated.                                                                                                                      
                                                                                                                                
2:14:42 PM                                                                                                                    
CHAIR COGHILL  asked what percentage  of Bar  Association members                                                               
respond to the polls.                                                                                                           
                                                                                                                                
MS.  DIPIETRO  explained  that the  Judicial  Council  sends  Bar                                                               
surveys  to the  mailing address  of  all active  members of  the                                                               
Alaska  Bar  Association.  She  offered to  follow  up  with  the                                                               
response rate.                                                                                                                  
                                                                                                                                
SENATOR  OLSON  asked  if  the  roughly  2,000  inactive  members                                                               
receive a survey.                                                                                                               
                                                                                                                                
MS. DIPIETRO offered to follow up with the information.                                                                         
                                                                                                                                
SENATOR  WIELECHOWSKI  referenced  a   statement  in  a  previous                                                               
hearing about defense attorneys  giving prosecutors lower scores.                                                               
He asked  if it would  be ethical and  if there were  many former                                                               
prosecutors who were judges.                                                                                                    
                                                                                                                                
MS.  DIPIETRO replied  it  would  be unethical  to  give a  false                                                               
statement on the  Bar survey, and that  prosecutors are nominated                                                               
at  about the  same rate  at which  they apply.  She acknowledged                                                               
that that  statement caused  her some concern  so she  looked and                                                               
found there  are about 25-30  sitting judicial officers  who have                                                               
prosecutorial experience.                                                                                                       
                                                                                                                                
2:17:35 PM                                                                                                                    
CHAIR COGHILL invited the sponsor to offer final comments.                                                                      
                                                                                                                                
2:17:45 PM}                                                                                                                   
SENATOR PETE KELLY, sponsor of  SJR 21, Alaska State Legislature,                                                               
Juneau,  Alaska,  highlighted  that   the  former  chief  justice                                                               
provided an anecdote  and admitted he's biased  because he's been                                                               
in the judiciary  for 30 years. The point is  that there's a need                                                               
to  expand  beyond  that  biased  community  that  comprises  the                                                               
judicial system because it has too  much sway in the selection of                                                               
a  branch  of  government,  he  said. He  commented  on  his  new                                                               
friendship with the  current chief justice and  stressed that the                                                               
discussion isn't about individuals, it's  about a system that has                                                               
a flaw.  It's the  job of  the legislature  to discuss  those and                                                               
perhaps make changes.                                                                                                           
                                                                                                                                
SENATOR KELLY relayed that a  topic of discussion this morning in                                                               
the  Finance  Committee  was  that  people  with  felonies  won't                                                               
qualify  for  jobs   on  the  pipeline  and  that   there  are  a                                                               
disproportionate number of  felons in rural Alaska.  Part of that                                                               
discussion  was  how to  ensure  that  the system  isn't  stacked                                                               
against these people  on a project that's partly  financed by the                                                               
state.  He  said that  was  relevant  to the  current  discussion                                                               
because it's looking forward to help  the people in the state who                                                               
are disadvantaged  and changing  what can  be changed.  He opined                                                               
that  the  Alaska  Constitution  appears   to  have  a  flaw  and                                                               
precludes rural participation in the judicial selection process.                                                                
Addressing  Senator  Olson's  observation  about  the  number  of                                                               
Native  or  rural  judges, he  agreed  with  Justice  Carpeneti's                                                               
analysis.  But what  can be  done right  away is  to allow  rural                                                               
people  to at  least  have  a say  in  the  process of  selecting                                                               
judicial candidates, he said.                                                                                                   
                                                                                                                                
Addressing the observations about  the sponsor statement, he said                                                               
sponsor statements  don't carry that  much weight in  the record,                                                               
and he stated the intention  of the resolution to this committee.                                                               
Number one is the need  for regional diversification and that the                                                               
number  of public  members is  too small  to accomplish  that. He                                                               
suggested  that  the  constitution  is in  conflict  with  itself                                                               
because  it says  there shall  be three  public members  and that                                                               
appointments  shall  be  made  with  due  consideration  to  area                                                               
representation and  without regard to political  affiliation. The                                                               
founders didn't realize  that when the state grew  there would be                                                               
a significant  rural Alaskan  voice that  wouldn't be  heard. The                                                               
solution is to expand the membership, he said.                                                                                  
                                                                                                                                
SENATOR KELLY  reiterated his belief  that voting to break  a tie                                                               
puts the  chief justice in  a conflict because the  chief justice                                                               
is a  human being. Because  the conflict  can't be avoided  he is                                                               
proposing  to  make the  system  fairer  by giving  the  people's                                                               
representation  more sway  than the  Bar Association.  Noting the                                                               
testimony  last  week  that argued  against  changing  the  merit                                                               
system, he  maintained that this  constitutional amendment  was a                                                               
very small  change and  it wouldn't change  the merit  system. He                                                               
urged the  members to  keep in  mind the  people of  rural Alaska                                                               
when voting.                                                                                                                    
                                                                                                                                
2:27:02 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if he  would support an  amendment to                                                               
the resolution to require membership from rural Alaska.                                                                         
                                                                                                                                
SENATOR   KELLY  responded   that   he   believes  the   regional                                                               
diversification meets that and he'd be willing to talk about it.                                                                
                                                                                                                                
CHAIR COGHILL asked the will of the committee.                                                                                  
                                                                                                                                
SENATOR MCGUIRE  discussed her belief that  increasing the number                                                               
of  public  members  would  increase  the  opportunity  for  more                                                               
diverse representation.                                                                                                         
                                                                                                                                
2:29:36 PM                                                                                                                    
SENATOR MCGUIRE  moved to report CS  for SJR 21, Version  N, from                                                               
committee  with individual  recommendations  and attached  fiscal                                                               
note(s).                                                                                                                        
                                                                                                                                
2:29:47 PM                                                                                                                    
SENATOR  WIELECHOWSKI   objected.  He   said  a  review   of  the                                                               
constitutional minutes shows that  the delegates clearly intended                                                               
to  keep  politics  out  of  the process,  and  that's  why  they                                                               
rejected   both  the   election  of   judges  and   gubernatorial                                                               
appointments. They instead adopted  a hybrid that's crafted after                                                               
the  Missouri Plan.  A  number  of people  are  appointed by  the                                                               
governor, a number  of people are members of  the Bar Association                                                               
and the  chief justice votes  only to break  a tie. He  cited the                                                               
Alaska  Redistricting   Board  to  illustrate  that   this  isn't                                                               
unusual. It  makes sense to  have the  chief justice vote  in the                                                               
case of  a tie because that  is a respected position.  The reason                                                               
the  position  is  respected is  because  Alaska's  judiciary  is                                                               
probably the best in the country.                                                                                               
                                                                                                                                
He  said that  other  states have  judiciaries  that are  heavily                                                               
politicized and the  people who get appointed  are either friends                                                               
of the  governor or  they raised money  for the  governor. That's                                                               
not how it's done in Alaska and  that's not how it should be done                                                               
in Alaska.  He said  his fear  is that  by weighting  the Council                                                               
with people  who are  appointed by  the governor  will politicize                                                               
the  process.  The founders  rejected  that  process and  instead                                                               
selected one  that has  worked well  for 50  plus years  and made                                                               
Alaska's judiciary  the best  in the country.  The system  is not                                                               
broken and it doesn't need to be fixed.                                                                                         
                                                                                                                                
SENATOR WIELECHOWSKI  said a  review of the  data shows  that the                                                               
system  isn't broken.  In the  last  30 some  years, 1,136  votes                                                               
resulted  in  an  even  split  between  the  attorneys  and  non-                                                               
attorneys  just  15 times.  When  something  occurs less  than  1                                                               
percent of the time that is  not an indication that the system is                                                               
broken, he said.  That the chief justice sided  with the attorney                                                               
members either 9 or 10 times isn't a clear indication of bias.                                                                  
                                                                                                                                
He said he asked to hear  from the Judicial Council today because                                                               
of the hyperbole that the  chief justice sides with the attorneys                                                               
without a  rational basis.  What the record  shows is  that there                                                               
was  a rational  basis for  every single  vote in  the last  five                                                               
years. The data shows that each  time the chief justice voted not                                                               
to forward  the name,  the person  had scored  demonstrably lower                                                               
than  everyone else  in the  applicant pool.  He said  this is  a                                                               
merit-based system,  which means  that the people  who ultimately                                                               
become  judges are  the best  and  have the  highest scores.  The                                                               
Judicial Council said that the people  who score well tend to get                                                               
nominated  and  tend to  do  better  on their  retention  scores.                                                               
That's what Alaska wants and that's what Alaska is getting.                                                                     
                                                                                                                                
He said  the comment last  week that  members of the  defense bar                                                               
reject  prosecutors is  false according  to the  testimony today.                                                               
First,  it  would be  unethical  to  give  a rating  that  wasn't                                                               
accurate.  Second,  there  are  32  former  prosecutors  who  are                                                               
sitting on the bench today.                                                                                                     
                                                                                                                                
SENATOR  WIELECHOWSKI  said  he  appreciates  the  concern  about                                                               
having a  fair bench that  takes into consideration  the concerns                                                               
of people  in rural  Alaska and the  concerns of  Alaska Natives.                                                               
Practically  everyone would  agree that  there should  be a  more                                                               
diverse  Bar and  a more  diverse  judiciary, he  said, but  this                                                               
resolution does nothing  to increase the ability  to elect people                                                               
from rural Alaska.  That's probably why the  Alaska Federation of                                                               
Natives unanimously  opposes this  resolution. He  reiterated his                                                               
opposition to  the resolution stating that  it will fundamentally                                                               
alter the  judiciary in Alaska  in a  way that won't  benefit the                                                               
people.                                                                                                                         
                                                                                                                                
2:37:55 PM                                                                                                                    
CHAIR COGHILL  said that,  as chair,  he would  vote in  favor of                                                               
moving the  bill in the  belief that it  would give the  public a                                                               
better opportunity  to have their  voice heard.  The constitution                                                               
states  that power  is  inherent  in the  people  and giving  the                                                               
people the opportunity  to have greater input  into the selection                                                               
of judges is  a good thing at  this time in history,  he said. He                                                               
rejected the  notion that increasing the  public membership would                                                               
politicize   the  process.   The   fact   that  Bar   Association                                                               
appointments  are somewhat  a mystery  and a  bit cartel-like  is                                                               
further reason to support this resolution, he said.                                                                             
                                                                                                                                
SENATOR OLSON commented  that the public has  a profound mistrust                                                               
of lawyers in  general, and it's justified.  He expressed support                                                               
for amending the resolution to  increase the rural representation                                                               
in either  the attorney or non-attorney  sector, and acknowledged                                                               
that was unlikely due to time constraints.                                                                                      
                                                                                                                                
CHAIR COGHILL asked for a roll call.                                                                                            
                                                                                                                                
2:47:36 PM                                                                                                                    
A roll call vote was  taken. Senators McGuire, Dyson, and Coghill                                                               
voted in favor of moving  SJR 21. Senators Wielechowski and Olson                                                               
voted against  it. Therefore, CSSJR  21(JUD) was reported  out of                                                               
the Senate Judiciary Standing Committee by a vote of 3:2.                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI stated  that when he checked  BASIS he found                                                               
that  the  bill  did  not  have  a  Finance  Committee  referral,                                                               
although it has a fiscal note.                                                                                                  
                                                                                                                                
2:48:41 PM                                                                                                                    
CHAIR COGHILL announced that CSSJR  21(JUD) moved from the Senate                                                               
Judiciary Standing Committee  with individual recommendations and                                                               
attached fiscal note.                                                                                                           
                                                                                                                                
2:48:53 PM                                                                                                                    
At ease                                                                                                                         
                                                                                                                                
^Confirmation Hearings                                                                                                          
                     Confirmation Hearings                                                                                  
             Select Committee on Legislative Ethics                                                                         
                                                                                                                                
2:50:59 PM                                                                                                                    
CHAIR  COGHILL  reconvened the  meeting  and  announced the  next                                                               
order of business  would be confirmations. He  asked Ms. Williams                                                               
to tell the committee what  she hoped to accomplish while serving                                                               
on the Ethics Committee.                                                                                                        
                                                                                                                                
2:51:19 PM                                                                                                                    
CHRISTENA  WILLIAMS, Appointee,  public member,  Select Committee                                                               
on  Legislative  Ethics, stated  that  she  was a  journalist  by                                                               
profession  and  previously  served   the  state  on  the  Alaska                                                               
Judicial Council.  She said  she believes  in public  service and                                                               
was  pleased  to  be  asked  to apply  to  serve  on  the  Ethics                                                               
Committee.                                                                                                                      
                                                                                                                                
CHAIR COGHILL  asked if  she had prior  experience serving  on an                                                               
Ethics Committee.                                                                                                               
                                                                                                                                
MS. WILLIAMS answered no.                                                                                                       
                                                                                                                                
CHAIR COGHILL asked if she had listened to any meetings.                                                                        
                                                                                                                                
MS. WILLIAMS  replied she attended  the Ethics  Committee meeting                                                               
that was held in Juneau in January.                                                                                             
                                                                                                                                
2:54:05 PM                                                                                                                    
CHAIR  COGHILL   found  no  objection  to   forwarding  the  name                                                               
Christena  Williams  to  the  full  body  for  consideration.  He                                                               
thanked  MS.  Williams  and  stated his  intention  to  hold  the                                                               
paperwork  until  the  committee  heard from  the  second  Ethics                                                               
Committee appointee, Janie Leask.                                                                                               
                                                                                                                                
2:55:45 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair Coghill adjourned the Senate Judiciary Standing Committee                                                                 
meeting at 2:55 p.m.                                                                                                            

Document Name Date/Time Subjects
SB 136.pdf SJUD 2/26/2014 1:30:00 PM
SB 136
SB 136 - Sponsor Statement.pdf SJUD 2/26/2014 1:30:00 PM
SB 136
SB 136 - Legislative Task Force UAS Interim Report.pdf SJUD 2/26/2014 1:30:00 PM
SB 136
SB 136 - IACP UA Guidelines.pdf SJUD 2/26/2014 1:30:00 PM
SB 136
Letter of Support - UAA.pdf SJUD 2/26/2014 1:30:00 PM
SB 136
Letter of Support - FEDC.pdf SJUD 2/26/2014 1:30:00 PM
SB 136
SB136-UA-SYSBRA-2-16-14.pdf SJUD 2/26/2014 1:30:00 PM
SB 136
SB136-DPS-DET-02-16-14.pdf SJUD 2/26/2014 1:30:00 PM
SB 136
SB136-LAW-CRIM-02-14-14.pdf SJUD 2/26/2014 1:30:00 PM
SB 136