Legislature(2021 - 2022)BUTROVICH 205

03/01/2021 01:30 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
<Bill Hearing Canceled>
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSSB 14(JUD) Out of Committee
              SB 14-SELECTION AND REVIEW OF JUDGES                                                                          
1:55:45 PM                                                                                                                    
CHAIR  REINBOLD   reconvened  the   meeting  and   announced  the                                                               
consideration  of SENATE  BILL NO.  14, "An  Act relating  to the                                                               
selection and  retention of  judicial officers  for the  court of                                                               
appeals and  the district court  and of magistrates;  relating to                                                               
the duties  of the  judicial council; relating  to the  duties of                                                               
the Commission on Judicial Conduct;  and relating to retention or                                                               
rejection  of a  judicial officer."  [CSSB 14(JUD)\B]  was before                                                               
the committee.                                                                                                                  
1:56:03 PM                                                                                                                    
SCOTT   OGAN,   Staff,   Senator  Mike   Shower,   Alaska   State                                                               
Legislature, Juneau, Alaska, reviewed  the three fiscal notes for                                                               
SB 14 on behalf of the sponsor.                                                                                                 
MR. OGAN referred to Fiscal  Note 1, an indeterminate fiscal note                                                               
from  the Alaska  Court  System (Court  System},  OMB [Office  of                                                               
Management and  Budget] component  768. He  related that  the ACS                                                               
expressed  concern  about  potential  delays  in  filling  vacant                                                               
judgeships  and   magistrate  positions.  For  example,   if  the                                                               
governor   rejects  the   Alaska  Judicial   Council's  (Judicial                                                               
Council) list of recommended judicial  candidates, the court will                                                               
likely  need to  hire pro  tem  judges or  acting district  court                                                               
judges  to handle  the incoming  and ongoing  caseload. Secondly,                                                               
the  ACS  expressed  concern  that  adding  ethical  reviews  for                                                               
magistrates  could result  in a  lack  of magistrate  applicants.                                                               
However,  in his  view the  pool would  probably increase  rather                                                               
than decrease, he said.                                                                                                         
1:58:36 PM                                                                                                                    
SENATOR  HUGHES asked  if potential  delays in  appointing judges                                                               
could be  remedied by amending  the bill  to add a  deadline. She                                                               
explained that an  indeterminate fiscal note was not  the same as                                                               
a  zero fiscal  note. Instead,  it  meant that  the Court  System                                                               
would likely  incur expenses but the  agency was not yet  sure of                                                               
the cost.                                                                                                                       
MR.  OGAN advised  members  that he  spoke  with the  Legislative                                                               
Legal attorney  about the possibility of  giving judges authority                                                               
to act  prior to  being confirmed.  One issue  that arose  was if                                                               
judges  worked   on  cases  prior   to  confirmation,   it  could                                                               
jeopardize those cases.  He suggested it may be  possible for the                                                               
legislature to grant express authority  but the legal issues were                                                               
not yet resolved.                                                                                                               
2:00:11 PM                                                                                                                    
SENATOR SHOWER advised  members that he just  received the fiscal                                                               
notes  so  he  was  unsure  how  to  handle  the  Court  System's                                                               
concerns. He indicated his preference  was to continue to work on                                                               
the  bill  in  subsequent  committees   in  the  other  body.  He                                                               
explained the goal was to  expand the pool of judicial applicants                                                               
and to assert the legislative supremacy doctrine.                                                                               
2:01:26 PM                                                                                                                    
SENATOR HUGHES stated that knowing  Legislative Legal has not yet                                                               
considered  if an  applicant could  sit  as a  judge answers  her                                                               
question.  She  suggested  that   perhaps  this  issue  could  be                                                               
addressed statutorily. She was unsure  of the costs of hiring pro                                                               
tem judges.  However, it appeared  as though the  vacancies could                                                               
be up  to 18  months so  it would be  necessary. She  offered her                                                               
view that  this issue  would still  need to  be addressed  as the                                                               
bill moves through the process.                                                                                                 
SENATOR  SHOWER  offered his  view  that  determining costs  that                                                               
could be absorbed by the agencies was subjective.                                                                               
2:03:00 PM                                                                                                                    
MR. OGAN  reviewed Fiscal  Note 2 by  the Commission  on Judicial                                                               
Conduct  (CJC), OMB  component 770,  for $64,000  in FY  2022. He                                                               
said  CJC  does  not  currently review  ethics  for  magistrates.                                                               
However, since  magistrates serve  at the  pleasure of  the chief                                                               
justice of the Alaska Supreme  Court (ASC), if any ethical issues                                                               
arose, the Court System would  handle them, he said. According to                                                               
CJC, this  bill would add  agency staff review of  any complaints                                                               
against magistrates.                                                                                                            
2:04:16 PM                                                                                                                    
SENATOR KIEHL  recalled that  magistrates were  judicial officers                                                               
of the District  Court, not under the jurisdiction  of the Alaska                                                               
Supreme Court.                                                                                                                  
MR. OGAN said he stands corrected.                                                                                              
2:04:38 PM                                                                                                                    
SENATOR SHOWER  offered his view  that the costs to  implement SB
14 could be  absorbed. He said he entertains the  idea of zeroing                                                               
out the fiscal notes but deferred to the will of the committee.                                                                 
CHAIR REINBOLD solicited a motion.                                                                                              
2:04:56 PM                                                                                                                    
SENATOR SHOWER moved to zero out  the fiscal note [Fiscal Note 2]                                                               
for the Commission on Judicial Conduct (CJC), OMB component 770.                                                                
CHAIR REINBOLD objected for discussion purposes.                                                                                
SENATOR KIEHL  explained that Fiscal  Note 2 reflects  14 percent                                                               
of the agency's current budget, which  would be a large amount to                                                               
absorb.  He said  CJC explained  the  expansion of  its work  and                                                               
limited it to one part-time position under SB 14.                                                                               
SENATOR SHOWER  expressed his interest  in discussing  the fiscal                                                               
note  in detail  with CJC  before  the bill  has a  hearing in  a                                                               
subsequent committee.  He maintained  his preference to  zero out                                                               
the fiscal note.  He said he was  open to amendments to  SB 14 to                                                               
help reduce the overall costs.                                                                                                  
SENATOR  KIEHL  objected  to  zeroing out  the  fiscal  note.  He                                                               
suggested that  the time to  zero out  the fiscal note  should be                                                               
when changes  are made to the  bill that will reduce  the cost to                                                               
2:07:37 PM                                                                                                                    
SENATOR  HUGHES recalled  that the  executive director  initially                                                               
related  that the  functions  proposed under  the  bill could  be                                                               
absorbed by the agency but  later decided otherwise. She reviewed                                                               
the  fiscal note  narrative,  which stated  SB  14 might  require                                                               
adding a  meeting or two  or increased travel  expenses. However,                                                               
CJC does  not currently  run full day  meetings so  she questions                                                               
the fiscal note.  She offered her support to zero  out the fiscal                                                               
CHAIR REINBOLD remarked that the  committee has spent substantial                                                               
time  deliberating  on  SB  14.   The  committee  has  considered                                                               
amendments to  streamline the process  and address  concerns. She                                                               
pointed out that  the state is currently in a  fiscal crisis. She                                                               
offered her support for the motion.                                                                                             
CHAIR REINBOLD removed her objection.                                                                                           
2:09:11 PM                                                                                                                    
SENATOR KIEHL maintained his objection.                                                                                         
A  roll  call  vote  was  taken.  Senators  Shower,  Hughes,  and                                                               
Reinbold voted in  favor of the motion to zero  out Fiscal Note 2                                                               
by the  Commission on  Judicial Conduct  and Senator  Kiehl voted                                                               
against it. Therefore, the motion to  zero out the fiscal note by                                                               
the CJC passed by a 3:1 vote.                                                                                                   
CHAIR  REINBOLD stated  that the  motion passed  by a  vote of  3                                                               
yeas, 1 nay.                                                                                                                    
2:09:46 PM                                                                                                                    
MR. OGAN reviewed  Fiscal Note 3, by the  Alaska Judicial Council                                                               
(Judicial Council), OMB Component 771,  in the amount of $78,500.                                                               
He related the Court System's  concerns. First, magistrates would                                                               
increase  the  council's  workload. Further,  a  possible  second                                                               
round of applicants could arise for the same vacancy.                                                                           
MR. OGAN  argued it was  highly unlikely that the  governor would                                                               
reject  his/her  candidates  unless the  Judicial  Council  found                                                               
issues while  conducting background reviews. He  pointed out that                                                               
the Judicial  Council currently  reviews candidates  for judicial                                                               
vacancies.  According to  the  Judicial  Council, the  additional                                                               
costs would  cover reviewing  magistrate candidates.  However, it                                                               
will  still  use the  same  process.  He indicated  the  Judicial                                                               
Council was willing  to absorb some costs, which  should be noted                                                               
for the record.                                                                                                                 
2:12:10 PM                                                                                                                    
SENATOR SHOWER offered his view  that the same arguments could be                                                               
made for  this fiscal  note as  the previous  one. He  echoed the                                                               
sentiment  that  the agency  had  a  willingness to  absorb  some                                                               
costs.   He  acknowledged   that  tension   exists  between   the                                                               
legislature and the  judicial branch. He said he  was not certain                                                               
if all of the work could be absorbed by the council.                                                                            
2:13:04 PM                                                                                                                    
SENATOR SHOWER  moved to zero  out Fiscal  Note 3, by  the Alaska                                                               
Judicial Council, OMB Component 771.                                                                                            
CHAIR REINBOLD objected for discussion purposes.                                                                                
SENATOR KIEHL remarked that fiscal note  3 appears to be a modest                                                               
fiscal note.  He stated that  the Judicial Council found  ways to                                                               
take on some  additional duties with its  current staff. However,                                                               
most of the  work required under the bill will  be contract work,                                                               
he said.  If additional  funding is  not provided,  it represents                                                               
about 6 percent of the  council's Unrestricted General Fund (UGF)                                                               
2:15:29 PM                                                                                                                    
CHAIR  REINBOLD characterized  Fiscal Note  3 as  a small  one to                                                               
cover  travel  costs of  approximately  $26,000  and services  of                                                               
$52,000. Under  the bill, the  Judicial Council would  screen any                                                               
candidates  for   magistrates  and  recommend  nominees   to  the                                                               
governor. She  related the fiscal note  narrative estimates about                                                               
six magistrate vacancies occur each  year. She said it seems like                                                               
these costs could be absorbed.                                                                                                  
2:16:41 PM                                                                                                                    
SENATOR HUGHES echoed her appreciation  that the Judicial Council                                                               
was  willing to  absorb  some  costs. She  said  the fiscal  note                                                               
relates  to  contract  survey  services.  However,  the  Judicial                                                               
Council already  conducts surveys,  she said. Since  the Judicial                                                               
Council never  knows how many  judges and applicants it  may need                                                               
to review,  it is possible  fewer candidates would arise  so some                                                               
council funding  for judicial  reviews could  be used  to conduct                                                               
magistrate  reviews.  Further,  the   fiscal  note  reflects  the                                                               
Judicial  Council's  request  for  additional  funds  to  conduct                                                               
outreach. She  offered her belief  that outreach occurred  in the                                                               
election pamphlet  so any additional  costs should not be  in the                                                               
thousands of dollars. She offered her support for the motion.                                                                   
2:18:50 PM                                                                                                                    
CHAIR REINBOLD removed her objection.                                                                                           
SENATOR KIEHL  objected. He  offered his  view that  the Judicial                                                               
Council's  work on  judicial retention  for magistrates  would be                                                               
additional  work.  He  agreed  that  public  outreach  costs  are                                                               
negligible  but  costs  associated with  advertising,  conducting                                                               
comprehensive surveys  of jurors,  police officers  and collating                                                               
responses were not. He maintained his objection.                                                                                
2:20:04 PM                                                                                                                    
A  roll  call  vote  was  taken.  Senators  Shower,  Hughes,  and                                                               
Reinbold  voted  in favor  of  zeroing  out  Fiscal Note  3,  OMB                                                               
component 771,  by the Judicial  Council and Senator  Kiehl voted                                                               
against it. Therefore, the motion to  zero out the fiscal note by                                                               
the Judicial Council passed by a vote of 3:1.                                                                                   
CHAIR REINBOLD  announced that the motion  passed by a vote  of 3                                                               
yeas, 1 nay.                                                                                                                    
2:20:40 PM                                                                                                                    
SENATOR SHOWER expressed  his willingness to continue  to work on                                                               
SB 14, including the fiscal notes.                                                                                              
2:21:52 PM                                                                                                                    
SENATOR SHOWER moved to report  the committee substitute (CS) for                                                               
SB  14  [work  order  32-LS0171\B]  out  of  committee  with  the                                                               
attached fiscal notes.                                                                                                          
CHAIR REINBOLD objected.                                                                                                        
SENATOR KIEHL  stated that while  he appreciated the work  on the                                                               
bill,  it  was designed  to  insert  politics into  the  judicial                                                               
selection process.  He offered his  view that this was  the wrong                                                               
direction to  go. Alaska has  the best  constitutional provisions                                                               
of all  50 states in  terms of  judicial selection, he  said. The                                                               
current process  keeps politics out  of judicial  selections. The                                                               
committee discussed the need for  judges to be accountable to the                                                               
electorate and  legislators. US Supreme Court  Chief Justice John                                                               
Roberts  said  in  a  recent  ruling  that  the  US  Constitution                                                               
entrusts the protection  of the people's rights  to the judiciary                                                               
"not despite judges being shielded but because they are."                                                                       
SENATOR KIEHL said  he has heard his constituents  lament that no                                                               
judges are far-left leaning, yet  public testifiers bemoaned that                                                               
there were  not any  hard-right judges sitting  on the  bench. He                                                               
interpreted Chief  Justice Roberts  ruling as saying  that judges                                                               
"call balls and strikes."                                                                                                       
SENATOR KIEHL expressed concern that  the bill would add politics                                                               
into the  process but it  is important  to keep as  much politics                                                               
out of  the judiciary as  possible. Concerns were raised  that an                                                               
imbalance  exists on  the Judicial  Council.  He argued  it is  a                                                               
nonissue.  In fact,  when the  attorney and  non-attorney members                                                               
serving on Judicial  Council were split on a  decision, the chief                                                               
justice  of the  Alaska  Supreme Court  voted  with the  attorney                                                               
members 7  times out  of 1,461  votes. Further, in  6 of  those 7                                                               
cases, the governor received more  than two recommended nominees.                                                               
The  structural  changes  in  the bill  do  not  follow  Alaska's                                                               
Constitution and it addresses a non-issue, he said.                                                                             
SENATOR KIEHL said  SB 14 will create new issues.  He offered his                                                               
view  that it  will  make  it more  difficult  to  hire and  fire                                                               
magistrates.  the  Judicial   Council's  application  process  is                                                               
extensive  and  the  public  vetting   process  is  thorough  and                                                               
difficult. Judges have indicated  that applying for judgeship was                                                               
the single  greatest impediment to them.  The retention elections                                                               
can be off putting to many  applicants, he said. Further, SB 14's                                                               
fiscal  impact is  $140,000, which  creates  more government  but                                                               
obtains worse results, he said.  He remarked that even though the                                                               
fiscal note is zeroed out, the work remains to be done.                                                                         
SENATOR KIEHL recalled that in  a previous legislature before the                                                               
Senate Judiciary Committee, Senator  Micciche said, "I appreciate                                                               
the statement about us not  being overly political and the people                                                               
that we  confirm, but  that just  simply isn't  the case.  We did                                                               
things  up from  elementary school"   For example,  he noted  the                                                               
political  nature of  the Board  of  Fisheries appointees,  among                                                               
SENATOR KIEHL  offered his view that  SB 14 fails to  fix what is                                                               
not a  problem and it amps  up the most apolitical  system in all                                                               
50 states. He maintained his objection to move the bill.                                                                        
2:28:51 PM                                                                                                                    
SENATOR  HUGHES reminded  members  that  the Alaska  Constitution                                                               
establishes  the  process  for judicial  selections  to  Superior                                                               
Court  and the  Alaska Supreme  Court. The  framers left  out the                                                               
lower courts  but could have  easily considered them.  She argued                                                               
that  it  is  difficult  to  remove  politics  from  the  system.                                                               
However,  she offered  her  belief that  this  bill would  lessen                                                               
politics  in   the  judiciary  because   it  will   increase  the                                                               
accountability of judges.                                                                                                       
SENATOR  HUGHES related  she has  often  heard Alaska's  judicial                                                               
selection process  is one  of the best  in the  country. However,                                                               
she has  only heard some  attorneys say so. Other  attorneys have                                                               
privately  told  her that  the  system  is rigged.  She  reminded                                                               
members that  government is  "of the people,  by the  people, and                                                               
for the  people." She argued  that this statement is  not limited                                                               
to the executive  branch and the legislative branch  but was also                                                               
intended to apply  to the judicial branch. She  heard the sponsor                                                               
state one result of  SB 14 is that it will  reflect the values of                                                               
the people.  Somehow the judicial  branch is almost placed  in an                                                               
elite  class,  yet  judges fall  under  the  same  constitutional                                                               
language, "of  the people,  by the people,  and for  the people,"                                                               
she said. Instead of politicizing  the process, the changes in SB
14 will place a check on  politics and bring an accountability to                                                               
the  process. Judges  serve  the people  in  Alaska. The  process                                                               
established  in SB  14 is  specifically allowable  by the  Alaska                                                               
Constitution. She offered her support for SB 14.                                                                                
2:32:39 PM                                                                                                                    
CHAIR  REINBOLD related  her understanding  that this  bill would                                                               
change  the appointment  process similar  to the  federal process                                                               
for appointing judges. She read  the definition of politics, "The                                                               
activities  associated with  the  governance of  the country  and                                                               
other areas, especially in debate  or conflict among individuals,                                                               
parties, or having hope to achieve power."                                                                                      
CHAIR REINBOLD  emphasized that politics affects  everything. The                                                               
courts currently have the ability  to strike down bills passed by                                                               
the legislature or  initiatives passed by the  voters without any                                                               
accountability.  The  legislative  branch  is  supposed  to  have                                                               
legislative supremacy and be the  strongest branch of government,                                                               
she said.  Currently, thousands  of cases  are not  prosecuted in                                                               
Alaska.  She   expressed  her   interest  in   having  additional                                                               
oversight of  the courts,  including legislative  confirmation of                                                               
judicial candidates.  She characterized the  process in SB  14 as                                                               
being closer to the people. She offered her support for SB 14.                                                                  
2:35:53 PM                                                                                                                    
SENATOR  SHOWER disagreed  with Senator  Kiehl on  the number  of                                                               
times the chief justice of the  Alaska Supreme Court has been the                                                               
tie-breaking vote. It was 19 times  out of 1,000, not 7 times, he                                                               
SENATOR SHOWER highlighted that  the Alaska Constitution sets out                                                               
procedures for  judicial selection  for the Alaska  Supreme Court                                                               
and  Superior Court  but  the legislature  has  the authority  to                                                               
determine the  judicial selection  process for the  lower courts.                                                               
He maintained  his belief  that the  judiciary is  political. For                                                               
example, the  chief justice directed  the Court  System's liaison                                                               
to oppose  this bill, he said.  He surmised that some  judges had                                                               
declined to  testify at the  hearing for  this bill out  of fear.                                                               
Even so,  90 percent of  the public comment  was in favor  of the                                                               
bill.  He maintained  his  view that  currently  the courts  have                                                               
limited accountability.                                                                                                         
SENATOR  SHOWER informed  members  that  the Legislative  Finance                                                               
Division's  staff indicated  that  the motion  to  move the  bill                                                               
should be  restated to acknowledge  the forthcoming  fiscal notes                                                               
[since the committee zeroed out two fiscal notes].                                                                              
2:40:49 PM                                                                                                                    
SENATOR KIEHL corrected his earlier  testimony. He clarified that                                                               
the chief justice of the Alaska  Supreme Court voted 7 times with                                                               
the other  attorneys not to  forward a  name to the  governor and                                                               
none was forwarded.                                                                                                             
2:41:43 PM                                                                                                                    
SENATOR HUGHES  characterized SB  14 as  a significant  bill. She                                                               
pointed out that  a recent stack of emails showed  support for SB
14 throughout  the state.  She recalled  that hundreds  of people                                                               
have contacted  her on this  issue. She maintained her  view that                                                               
this bill provides a means for  a better form of a constitutional                                                               
representative  democratic republic  within the  judiciary branch                                                               
by allowing the people's voice to weigh in.                                                                                     
CHAIR   REINBOLD  offered   her  belief   that  the   US  has   a                                                               
representative Republican form of government.                                                                                   
2:42:48 PM                                                                                                                    
At ease                                                                                                                         
2:43:48 PM                                                                                                                    
CHAIR REINBOLD reconvened the meeting.                                                                                          
CHAIR REINBOLD solicited a corrected motion.                                                                                    
[The committee treated  it as though Senator  Shower withdrew his                                                               
motion to move the committee substitute  for SB 14, Version B and                                                               
that Chair Reinbold removed her objection.]                                                                                     
2:43:57 PM                                                                                                                    
SENATOR  SHOWER  restated his  motion.  He  moved to  report  the                                                               
committee  substitute (CS)  for SB  14, Version  32-LS0171\B from                                                               
committee with individual  recommendations and forthcoming fiscal                                                               
SENATOR KIEHL objected.                                                                                                         
2:44:17 PM                                                                                                                    
A  roll  call  vote  was  taken.  Senators  Hughes,  Shower,  and                                                               
Reinbold voted in  favor of moving the  committee substitute (CS)                                                               
for SB  14, Version B,  out of committee with  forthcoming fiscal                                                               
notes. Senator  Kiehl voted against  it. Therefore,  CSSB 14(JUD)                                                               
was reported  from the Senate  Judiciary Standing Committee  by a                                                               
vote of 3 yeas, 1 nay.                                                                                                          
CHAIR REINBOLD  announced that the  CSSB 14(JUD), Version  B, was                                                               
reported out of committee.                                                                                                      

Document Name Date/Time Subjects
SB014CS-JUD-CJC-02-25-2021.xlsx SJUD 3/1/2021 1:30:00 PM
SB 14
SB014CS(JUD)-JUD-ACS-02-25-2021.pdf SJUD 3/1/2021 1:30:00 PM
SB 14
SB014CS(JUD)-JUD-ACS-02-25-2021.xlsx SJUD 3/1/2021 1:30:00 PM
SB 14
SB14CS(JUD)-JUD-AJC-02-25-2021.xlsx SJUD 3/1/2021 1:30:00 PM
SB 14
SB014CS(JUD)-JUD-CJC-02-25-2021.pdf SJUD 3/1/2021 1:30:00 PM
SB 14
SB14CS(JUD)-JUD-AJC-02-25-2021.pdf SJUD 3/1/2021 1:30:00 PM
SB 14