Legislature(2015 - 2016)BUTROVICH 205
03/24/2015 08:30 AM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB75 | |
| SJR3 | |
| SB75 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SJR 3 | TELECONFERENCED | |
| *+ | SB 75 | TELECONFERENCED | |
| *+ | HB 35 | TELECONFERENCED | |
| += | SB 22 | TELECONFERENCED | |
| + | TELECONFERENCED |
SJR 3-CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
8:56:13 AM
CHAIR STOLTZE announced that the next order of business before
the committee is SJR 3.
8:56:37 AM
HEATHER SHADDUCK, Staff, Senator Kelly, Alaska State
Legislature, Juneau, Alaska, stated that SJR 3 has 3 main goals:
1. Create the possibility of better regional representation on
the Alaska Judicial Council.
2. Protect the Chief Justice of the Alaska Supreme Court from
a conflict of interest or even the perception of a conflict
of interest in the selection of his or her future
colleagues or allies in certain issues that might come
before them.
3. Make attorney members of the Judicial Council minimally
accountable to the people by requiring legislative
confirmation, just like every other regulatory or quasi-
judicial board or commission.
CHAIR STOLTZE asked if Senator Kelly wanted to add anything.
8:57:29 AM
SENATOR PETE KELLY, Alaska State Legislature, Juneau, Alaska,
SJR 3 sponsor, replied no.
CHAIR STOLTZE announced that the committee will go through
public testimony and see what the will of the committee is. He
noted that Senator McGuire is anxious to continue deliberation
for the resolution in the Judiciary Committee.
SENATOR MCGUIRE asked Senator Kelly if SJR 3 differed from the
previous year's version.
SENATOR KELLY answered that SJR 3 was the same as the resolution
introduced the previous year.
SENATOR MCGUURE asked if there had been any changes.
MS. SHADDUCK explained that during the previous year, an
amendment was added during the committee process that required
attorney members to be confirmed.
SENATOR KELLY specified that the House version had the
confirmation requirement.
8:58:23 AM
CHAIR STOLTZE announced that the committee would take public
testimony on SJR 3.
8:59:01 AM
TOM WAGNER, representing himself, Juneau, Alaska, stated that he
was a lawyer and has practiced law in Alaska for 34 years. He
proclaimed that Alaska's system of judicial selection was not
broken and did not need to be fixed. He said Alaska's judicial
selection system is one of the best systems in the country and
SJR 3 would weaken the system. He specified that SJR 3 would
cause harm as follows:
· Increasing the Judicial Council's size from six to nine people
would cause difficult interaction to do business, be less
efficient, and increase expenses.
· Create a perception that lawyers would dominate the process and
non-lawyers would be overrun. Lawyers are just like other
Alaskans.
· Politicize the judicial selection process during the Judicial
Council's nomination process.
MR. WAGNER stated that the Judicial Council's nomination process
was meant to be non-partisan where the applicants' credentials
are evaluated in a non-political type of way. He summarized that
the second part of the judicial selection process where the
governor makes a selection was political and governors know how
to do politics.
9:02:38 AM
KENNETH FISHER, representing himself, Juneau, Alaska, announced
that he was representing no other organization. He stated his
support for SJR 3. He disclosed that he serves on the Board of
Regents of the University of Alaska. He remarked that his
perspective was from someone who serves on a similarly
constituted board or committee. He pointed out that the Board of
Regents and the Judicial Council are one of the few boards or
committees identified in Alaska's constitution.
He detailed that he was appointed to the Board of Regents in
2009. He remarked that SJR 3, if approved, would add numbers to
the Judicial Council by increasing the number to 10. He said SJR
3 would ensure greater geographical representation across the
state in addition to producing better and more robust
deliberations. He stated that contrary to the previous
testimony, more people will improve a body's discussions and
deliberations. He noted that the 11 regents on the Board of
Regents ensures robust exchanges on many policy issues.
He said the main reason for his support was his belief that SJR
3 would provide a better structure for good government by
incorporating a greater level of accountability into Alaska's
judicial process. He opined that the Judicial Council was an
unelected and unaccountable organization which makes
appointments for the majority of the council if the Chief
Justice is a member in good standing. He added that Alaska Bar
Association members from outside of Alaska are impacting the
state's decision by having a role in the selection process and
not the legislature.
MR. FISHER summarized as follows:
Society should do what our founders did by building
structures in our founding documents that hold
accountable with check and balances. The legislature
should have the authority and responsibility to
confirm Judicial Council appointments so that Alaskans
can hold somebody accountable for those decisions.
9:05:55 AM
SENATOR WIELECHOWSKI asked if Mr. Fisher's comments are on
behalf of the University of Alaska.
MR. FISHER answered no. He noted that his comments where his
own.
SENATOR WIELECHOWSKI asked to confirm that Mr. Fisher works as
the senior representative for the U.S. Environmental Protection
Agency (EPA) in Alaska.
MR. FISHER answered yes.
SENATOR WIELECHOWSKI asked if Mr. Fisher believes that the EPA's
actions in the State of Alaska are constitutional.
MR. FISHER replied that presumptively so, but added that he was
not at the meeting to speak about EPA policy.
SENATOR WIELECHOWSKI noted that Mr. Fisher spoke a lot about
violating the constitution. He asked Mr. Fisher if he thought
what the EPA is doing in Alaska is constitutional.
MR. FISHER inquired when he had mentioned violating the
constitution.
SENATOR WIELECHOWSKI pointed out that Mr. Fisher talked about
trying to establish a better constitutional balance.
MR. FISHER replied yes, regarding better accountability and the
legislature should have a role.
CHAIR STOLTZE asserted that the committee is not trying to run a
tribunal. He pointed out that he has some problems with the way
the court system runs things.
SENATOR WIELECHOWSKI remarked that he has a right to ask the
witness a question.
CHAIR STOLTZE stated the he thinks Senator Wielechowski was
going beyond the bounds.
SENATOR WIELECHOWSKI specified that Mr. Fisher brought
constitutionality into play when he talked about what was and
what was not constitutional. He reiterated that he has a right
to ask the question.
9:07:16 AM
CHAIR STOLTZE announced that the committee will stand at ease.
9:07:43 AM
CHAIR STOLTZE called the committee back to order. He asked if
Mr. Fisher had any other comments to make.
MR. FISHER stated that he thanked Senator Huggins for a comment
he made prior to the committee meeting.
SENATOR HUGGINS thanked Mr. Fisher.
9:08:23 AM
DAVID LANDRY, representing himself, Anchorage, Alaska, announced
that he opposes SJR 3. He revealed that he was a general
contractor in Anchorage and has been in business for about 30
years. He said one of his concerns about SJR 3 is the dismissal
of professional knowledge that attorneys bring to the table
during a judicial selection process. He remarked that as a
contractor, when the time comes to replace a subcontractor or
vendor, his first order of business is to talk with other
contractors to get their assessments of who does good work. He
said he seeks the opinion of knowledgeable professionals in
order to inform and make his decisions. He set forth that the
Judicial Council's current makeup and balance makes use of
professional experience in a similar way. He stated that the
Judicial Council was currently in good balance. He noted that
most cases that come before a judge have attorneys on opposing
sides of an issue or lawsuit. He said even though opposite
outcomes are often sought, attorneys share in the benefit from
competent and fair judges.
MR. LANDRY opined that the underlining assumption of SJR 3 is
that fellow Alaskans and the Alaska Bar Association are getting
together to pull an ideological fast-one on everyone else does
not make sense. He said Alaska Bar Association members are just
as diverse as any other group of Alaskans.
He set forth that attorney members of the Judicial Council are
the crux of the merit-based selection system. He opined that
attorney members are in a unique position to know which judicial
candidates are up to the task of running fair and professional
courts. He said regarding an attorney confirmation, giving the
legislature the ability to cherry-pick which attorneys are to be
allowed or disallowed on the Judicial Council injects politics
into the most merit orientated part of the merit-based system.
He remarked that proponents of legislative confirmation seek to
inject political considerations into the one crucial part of the
process that does not come under the political influence. He
stated that he does not see confirmation being a pro forma
process if SJR 3 passes, but rather a political screening.
He stated that his bottom line as a business person is that fair
courts are good for business. He declared that he was already
receiving what he sought from the Alaska Court System. He said
what the state's founders intended has largely come to pass
where a judiciary is free of scandal and political cronyism. He
summarized that SJR 3 puts fair and professionally handled
courts into jeopardy.
9:11:25 AM
SENATOR MCGUIRE pointed out that Mr. Landry stated his belief
that all three provisions of the bill would inject cronyism into
the process. She asked Mr. Landry if he believed that adding
average Alaskan citizens would qualify for his statement.
MR. LANDRY answered that he does not have a problem with adding
average Alaskans who are attorneys or non-attorneys. He
specified that he does not want judicial selection to have a
super-majority of political appointees as called for in SJR 3.
He remarked that he would not have a problem with the balance
remaining the same with additional members. He specified that
adding a super-majority of gubernatorial appointments is court-
packing. He said he wants to go into a court with confidence
that a smart, knowledgeable, and fair judge was running a
courtroom that could handle complicated business law issues. He
remarked that a courtroom with a judge that is a political crony
is not going to work and is not good for business.
9:13:15 AM
MARK ANDREWS, representing himself, Fairbanks, Alaska, disclosed
that he is a candidate for the Bar Association's Board of
Governors. He explained that Alaska has what is called the
Missouri Plan, a plan that started in Missouri in 1940 and
remains in effect in Missouri after 75 years. When the Alaska
Constitutional Convention considered the Missouri Plan, the plan
was considered to be the best idea of the time for judicial
selection. He said currently there are 34 states and the
District of Columbia using the Missouri Plan as the model for
some or all of the judicial vacancies. He noted that he
concurred with Mr. Wagner that Alaska's judicial selection
system was not broke. He detailed that the Judiciary Council's
process is a way to balance the separations of powers. He
conceded that there is politics in the system, but added that
the best way to get politics out of the system would be to look
at the results of the system. He said Alaska should be proud of
the quality of its judiciary system produced by the current
system. He summarized that that Alaska's judiciary is competent,
free of corruption, and does not need fixing.
9:15:28 AM
MARGARET SIMONIAN, representing herself, Anchorage, Alaska,
noted that she has been an Anchorage based attorney for 15 years
in addition to being a mom and lifelong Alaska resident. She
declared her opposition to SJR 3. She remarked that a
fundamental misunderstanding exists regarding what goes into
bars, deliberations and votes, both for the Judicial Council's
attorney members and for candidates for judicial positions. She
stated that she has strong political views, but her views are
not the things that inform how she rates a candidate for a
judicial position in any way. She said how fair, hardworking,
intelligent, and careful judges are directs her life and all
lawyers' lives every day in very specific ways; that is why
lawyers are in the best position to judge other lawyers who hope
to go to that level of their careers.
9:20:33 AM
ALISON ARIANS, representing herself, Anchorage, Alaska, she
stated that she was born and raised in Alaska and is a small
business owner in Anchorage of the "Rise and Shine Bakery." She
noted that she is not an attorney. She read the following
statement:
As a small business owner, I appreciate efficiency, a
limited bureaucracy, and expert advice. I agree with
the way our Judicial Council works now; adding more
people to the group will add significant expense to
the travel budget of this group. I'm comfortable with
asking people with law degrees to evaluate their
peers, the combination seems efficient the way it is.
I respect the Chief Justice's opinion if necessary for
him or her to vote, to know whether a judge is well
qualified for a job. Also, I think the citizen members
on the group deserve a little more credit for being
able to make good recommendations to their group and
to back them up; it's only been 16 times out of 1,149
votes when the Chief Justice sided with the attorney
group against the public members and it looks to me
like the group worked very well, since 99 percent of
the time, that's not happening. For several years I
volunteered as a court appointed special advocate, I
acted as volunteer guardian ad litem for children and
that is the only experience I have in front of a
judge, I was impressed by the caliber of our judges
then and want to retain that kind of high quality.
It's important to me that the judges making decisions
about the future of our citizens are evaluated by
their merit, not by their political leanings. When I
vote for the judges, I want to be able to know that
the judges I vote for are well qualified and I believe
that the Judicial Council as it stands is effective
and efficient.
9:22:35 AM
GRANT CALLOW, representing himself, Anchorage, Alaska, explained
that he is an attorney that has been in practice in Anchorage
for 37 years. He noted that during the past 25 years he has
represented the State of Alaska as a member of the Uniform Law
Commission. He stated his opposition of SJR3. He revealed that
his father was a Supreme Court justice in Wisconsin and noted
that Wisconsin has an elected system for judges. He noted that
his father is against Wisconsin's system due to politicization
and he is working with other Supreme Court justices for a
constitutional change that is more in line with the Alaska's
constitution. He questioned a previous comment that SJR 3 would
increase attorney accountability. He asserted that SJR 3 would
do the opposite where politicization leads to less
accountability. He summarized that SJR 3 would be a step
backwards in terms of having a fair and impartial judiciary.
9:26:45 AM
CHAIR STOLTZE asked if anyone else would like to testify. He
announced that hearing requests, public record was closed.
9:27:53 AM
SENATOR MCGUIRE moved that the committee move SJR 3 out of
committee with individual recommendations and attached fiscal
notes on to the Judiciary Committee.
CHAIR STOLTZE objected for discussion purposes.
CHAIR STOLTZE announced that his objection was removed and asked
if any other committee members objected. He noted that SJR 3
would be more thoroughly vetted in the Senate Judiciary
Committee.
SENATOR WIELECHOWSKI announced his objection and asked if the
committee would hear from the Alaska Judicial Council.
CHAIR STOLTZE pointed out that he just asked if there were any
more people and nobody stepped forward.
SENATOR WIELECHOWSKI noted that a representative from the
Judicial Council was in the room and asked that the committee
hear from them.
9:29:16 AM
CHAIR STOLTZE stated that he was not going to beg the Judiciary
Council to come up and noted that he asked if there was anybody
here to testify.
SENATOR WIELECHOWSKI reiterated that he would like to hear from
the Judicial Council.
CHAIR STOLTZE replied that he did not see anyone jumping up. He
remarked that the court system has been very arrogant and not
wanting to testify.
SENATOR WIELECHOWSKI announced his objection to Chair Stoltze's
comment. He stated that Chair Stoltze's characterization was
completely inappropriate. He added that calling the court system
arrogant was completely inappropriate.
CHAIR STOLTZE replied that the court system has refused to
engage in any individual discourse and had previously stated
that their role was not to interact with the legislature. He
announced that Senator Wielechowski's objection has been noted.
He asked that the advocate for the Judicial Council to come
forward.
9:30:02 AM
At ease
9:30:24 AM
CHAIR STOLTZE called the committee back to order.
SUZANNE DIPIETRO, Executive Director, Alaska Judicial Council,
Anchorage, Alaska, explained the Judicial Council as follows:
· Consists of six members.
· All attorney members were born and raised in Alaska or were
long time attorney members.
· Procedures for judicial selection are among the most
transparent in the country.
· Judicial selection applications are 20 pages and list:
education experience, work experience, credit reports, and
criminal history checks.
· Applicants' non-confidential information is posted on the
Judiciary Council's website for public review.
· Information from the public is continuously solicited via
phones calls, letters, and website e-mails.
· Alaska Bar Association members are surveyed to rate
applicants on specific qualities: legal ability,
temperament, integrity, fairness, and suitability of
experience. Survey results are posted on the Judiciary
Council's website.
· Questionnaires are submitted to people who have litigated
against applicants on specific cases.
· Interviews are scheduled with all applicants.
· Public hearings are held in the location of the vacancy in
order to hear public testimony on what types of qualities
sought in a judge and the challenges faced by the
community.
9:32:58 AM
MS. DIPIETRO summarized the Judicial Council's judiciary
selection process as follows:
· The Judicial Council votes in public. 19 of 38 other
judicial selection commissions do not vote in public.
· Applicants' names and biographies are posted on the
Judicial Council's website. Only 14 other judicial
selection committees post applicants' information.
· Focus is placed on the candidates' qualifications. Due to
the council's focus on qualifications, members have a high
rate of agreement about nomination decisions, approximately
81 percent of the time.
· Votes on an applicant are unanimous or almost unanimous due
to the focus on applicant qualifications.
· The Chief Justice rarely votes. In the past 30 years, the
Chief Justice has only voted 6 percent of the time.
· Over the past 30 years, attorney/non-attorney splits have
only occurred 16 times out of 11,049 votes.
· Chief Justices have sent more than one applicant's name to
the Governor 75 percent of the time.
9:34:32 AM
SENATOR MCGUIRE asked to confirm that Ms. DiPietro is the
Executive Director for the Judicial Council.
MS. DIPIETRO answered correct.
SENATOR MCGUIRE asked if the Judicial Council is taking a formal
position on SJR 3.
MS. DIPIETRO replied that the Judicial Council has not taken a
formal position and specified that she is at the committee
meeting to provide information.
SENATOR MCGUIRE noted that she appreciated Ms. DiPietro's
response that the Judicial Council has remained neutral. She
asked Ms. DiPietro if the legislature made changes to the
Judicial Council if she would service the additional public
members in a professional manner.
MS. DIPIETRO answered yes.
CHAIR STOLTZE added that the people would ultimately decide
whether or not to change the Judicial Council. He asserted that
the Judicial Council does get involved in politics and pointed
out situations relating to advertising, discussions about the
content of web pages, election pages on another bill, and
removing parties. He asked if the Judicial Council should be
more agnostic and just put the ratings down without a
recommendation for or against.
MS. DIPIETRO replied that the statutes simply says that the
Judicial Council may make a recommendation on retention and the
council has historically made recommendations to assist the
voters, which the voters can take or leave.
CHAIR STOLTZE responded that given that the recommendation is a
statutory authority, maybe the legislature should look at the
statute in order to keep the council pure and agnostic in order
to keep the council out of politics.
9:37:12 AM
NANCY MEADE, General Counsel, Alaska Court System, Anchorage,
Alaska, said she is representing the Court System. She stated
that the Alaska Court System (ACS) is opposed to SJR 3 because
fundamentally ACS depends on the Judicial Council to screen
applicants in order to provide good judges. She said the ACS'
core mission is to provide a fair and just forum for people to
have their disputes adjudicated by the best possible judges. She
provided reasons to support her claim to retain the current
system as follows:
· The Court System has a strong bench because the Judicial
Council has done a good job in naming the most qualified
applicants.
· The Court System does not have a bench that is marred by
kickbacks and scandals.
· The Judicial Council's process is non-partisan.
· There have not been any problems with lawyer members on the
Judicial Council.
MS. MEADE pointed out that the governor's selection process from
the candidates deemed qualified by the Judicial Council is
appropriately political. She remarked that the Judicial Council
has reached consensus approximately 96 percent of the time and
is not split or marked by factions. She asserted that having
partisan considerations earlier in the candidate process has the
potential to provide names that are not necessarily the best
qualified. She pointed out that candidates selected by the
Judicial Council come from every end of the political,
educational, and social spectrum. She noted that most cases that
come before the court for resolution have nothing to do with
politics.
She summarized that the Court System believes that there is no
need to amend the constitution. She cautioned that problems may
be created where considerations are added that are not
appropriate for the selection and retention of judges.
9:41:51 AM
SENATOR MCGUIRE pointed out that the decision regarding changes
to the Judicial Council will go to the voters. She asked why it
is appropriate for the Judicial Council's public members to be
subject to legislative hearings and confirmations, but not the
attorney members. She inquired why the resolution's proposed
changes would politicize a process any more than it already is
politicized. She pointed out that the Judicial Council's three
public members are fully vetted throughout the committee
process. She added that there is nothing in SJR 3 that changes
the fact that the Judicial Council will continue to select the
names that will go forward to the governor. She specified that
the SJR 3 would change the Judicial Council's composition of
those who get to make selection. She questioned how SJR 3 would
corrupt the Judicial Council. She queried why the Court System
was resistant to trying a different way when only three more
public Alaskans are added to the Judicial Council. She opined
that having attorneys go through a public hearing process would
actually be more public and transparent.
9:44:56 AM
MS. MEADE replied that adding three members would make the
Judicial Council imbalanced where six governor appointees are of
a similar mind of the governor. She cautioned that the
governor's appointees could vote as a block to ensure that the
governor's views dictate name selection rather than on merit.
She added that having attorney members go through legislative
confirmation would lead to political questions rather than
caring about getting the best judges. She maintained that focus
should be based on the judicial applicants' merits and not on
politics. She summarized that the proposed change has the
potential to change things in a very negative way as opposed to
leaving the emphasis on merit.
SENATOR MCGUIRE noted that she had made a motion.
9:48:22 AM
SENATOR WIELECHOWSKI objected to moving SJR 3 out of committee
and stated the following:
Our constitution is one of the best constitutions in
the United States; it was developed over 50 years ago
when we learned from all of the mistakes from all of
the other states. Amending the constitution is not
something you take lightly, it is something that you
do when something is seriously broken. Is our
constitution broken in regards to how we pick judges?
No, the facts are very clear on that and you can look
at the documents that we have been provided by the
court system. There have been 1,149 votes as of
January 22, 2015 that the Judicial Council has taken,
1,149 votes; of those 1,149 votes, there have been
exactly 16 ties, 16 ties out of 1,149 votes between
attorneys and public members, and where the Chief
Justice had to vote to decide whether or not to
forward a name on to the governor for appointment, of
those 16 votes, the Chief Justice voted 9 times. So,
we are dealing with 9 times in a 30 year history out
of 1,149 votes when you've had a split between
attorneys and the public members, and the Chief
Justice didn't forward it on. In the Judiciary
Committee, we're going to those 9 times, because every
single one of them there was a good reason why the
name wasn't forwarded on; for example, there were
times when the people who were applying for the
judgeship were rated unsatisfactory. Should that name
be forwarded on? Well, the public members said yes,
but the Chief Justice wisely said no. In other cases
there were incidences where the names put forward were
not as qualified as the other members, yet the public
members agreed to put them forward. Should that name
be forwarded on? Clearly no, we are going to go
through each one of those in the Judiciary Committee,
this is going to politicize the judiciary, which is
one of the best in the nation, and we don't need more
politics in the Judiciary. Mr. Chairman, I am
maintaining my objection.
CHAIR STOLTZE asked that a roll call vote be taken.
A roll call vote was taken. Senator Huggins, McGuire, and Chair
Stoltze voted in favor of moving SJR 3 from committee; Senator
Wielechowski voted against it. Therefore, SJR 3 moved from
committee by a vote of 3 to 1.
9:50:58 AM
CHAIR STOLTZE moved to report SJR 3 from committee with
individual recommendations and attached fiscal note(s). He added
that the Senate Judiciary Committee will delve more deeply into
SJR 3.
SENATOR HUGGINS commented as follows:
I hope we all appreciate that there's no elite
fraternities that are appropriate for any place in us
getting to where we need to be when we look at
opinions. So, for myself as a guy from a rural area
called Mat-Su, I feel perfectly comfortable that my
constituents will be celebrating the fact that we are
having a conversation about this and looking at how
common, everyday citizens who are pretty good people,
they are good fishermen, they are good hunters, they
are artists, and they pay a few taxes once in a while,
and oh by the way, they will standup and be counted.
So, in that respect, I am not looking for elite
fraternities of people.
SENATOR WIELECHOWSKI asked if the committee was re-debating the
issue because SJR 3 had moved out of committee.
SENATOR HUGGINS replied that he was explaining his vote.
CHAIR STOLTZE asked Senator Huggins if he had summary comments.
SENATOR HUGGINS summarized as follows:
As I said earlier, for my constituents, explaining my
vote, is that I don't support elite fraternities and I
know that my good friends and neighbors would like for
us to have this conversation so that they can
understand the dynamics, and ever how the debate
finishes, and the dust settles on it, that's okay;
but, we should not be beyond question about how we've
done things and how we do things.