Legislature(2023 - 2024)BELTZ 105 (TSBldg)

02/23/2023 03:30 PM Senate STATE AFFAIRS

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+ Bills Previously Heard/Scheduled TELECONFERENCED
             SB  31-SELECTION AND REVIEW OF JUDGES                                                                          
4:30:06 PM                                                                                                                    
CHAIR  KAWASAKI   reconvened  the   meeting  and   announced  the                                                               
consideration  of SENATE  BILL NO.  31  "An Act  relating to  the                                                               
selection, retention, and rejection  of judicial officers for the                                                               
court  of appeals  and  the district  court  and of  magistrates;                                                               
relating to the  duties of the judicial council;  and relating to                                                               
the duties of the Commission on Judicial Conduct."                                                                              
He  advised  that  testimony  on  SB 31  could  be  submitted  to                                                               
senate.state.affairs@leg.gov.   He   invited   the   sponsor   to                                                               
introduce the bill.                                                                                                             
4:31:18 PM                                                                                                                    
SENATOR  MIKE  SHOWER,  District  O,  Alaska  State  Legislature,                                                               
Juneau,  Alaska  sponsor  of  SB 31,  advised  that  a  committee                                                               
substitute  was forthcoming.  He introduced  the bill  by reading                                                               
the sponsor statement.                                                                                                          
[Original punctuation provided.]                                                                                                
     Alaska's constitution is clear, there are two tiers of                                                                     
      1. Constitutional Judges: Superior Court Judges and                                                                       
         Supreme  Court  Justices  must  be  vetted  by  the                                                                    
         Judicial Council  (Council)  and  the Governor  can                                                                    
         only  select from  a  list  of  two or  more  names                                                                    
         submitted   by    the   Council.   SB    31   holds                                                                    
         constitutional  judges   harmless.  The   operating                                                                    
         authority of this provision is: Art  IV Sec 5. "The                                                                    
         Governor shall fill any vacancy in an office of the                                                                    
         supreme court  justice or  superior court  judge by                                                                    
         appointing one of two or  more persons nominated by                                                                    
         the Judicial Council.                                                                                                  
    2.   Statutory   Judges:    District,   Appellate   and                                                                     
         Magistrates. Existing statute currently follows the                                                                    
         Judicial  Council   nomination  process.   However,                                                                    
         judicial   candidates    are    subject   to    the                                                                    
         legislature's discretion on how  they are selected,                                                                    
         and appointed and whether they are confirmed by the                                                                    
         legislature.  SB  31  exercises  the  legislature's                                                                    
         delegated constitutional authority to set policy on                                                                    
         how these statutory judges are selected to serve on                                                                    
         the bench. The operating authority of the provision                                                                    
         is: Art IV Sec 4. "Judges of  other courts shall be                                                                    
         selected  in   a  manner,   for  terms,   and  with                                                                    
         qualifications as prescribed by law."                                                                                  
     Currently,  magistrates serve  at the  pleasure of  the                                                                    
     presiding superior court  judge. Appellate and District                                                                    
     Court  Judges  are  nominated   in  a  statute  defined                                                                    
     process that mirrors the Art  IV Sec 5 Judicial Council                                                                    
     The Council  is structured  to give  a majority  of the                                                                    
     Alaska Bar (Bar) members the  control of who gets to be                                                                    
     a  judge or  justice. The  deciding  vote in  a tie  is                                                                    
     given  to  the  ex-officio seventh  member,  the  Chief                                                                    
     Justice. The Chief Justice has  voted 79 times to break                                                                    
     ties since 1984.                                                                                                           
     Additionally, all judicial  candidate names are subject                                                                    
     to  a Bar  member-controlled prescreening  process. Bar                                                                    
     members of the Council  are appointed internally by the                                                                    
     Bar with no  legislative confirmation or administrative                                                                    
     oversight.  Virtually  all  the  Judiciary  Branch  is,                                                                    
     "beyond the reach of democratic  controls." There is an                                                                    
     old  saying,   "power  corrupts,  and   absolute  power                                                                    
     corrupts  absolutely." While  the bill  sponsor is  not                                                                    
     expressly alleging corruption  within the Judiciary, it                                                                    
     is undeniable  that the Bar exercises  tremendous power                                                                    
     over the judiciary.                                                                                                        
     In a  legislative briefing  to a  joint session  of the                                                                    
     legislature,  Chief  Justice Winfrey  recently  decried                                                                    
     the  legislature meddling  in  the Judiciary,  claiming                                                                    
     there  are  no  politics   in  the  Judiciary.  If  you                                                                    
     disagree, he further  implied that you are  just a sore                                                                    
     loser.    He   was    adamant    that   the    people's                                                                    
     representatives should not  influence the selections of                                                                    
4:34:58 PM                                                                                                                    
SENATOR CLAMAN called a point of order saying that the foregoing                                                                
was a poor characterization of the Chief Justices' comments, and                                                                
it was inappropriately disrespectful.                                                                                           
CHAIR SHOWER countered and then continued to read the sponsor                                                                   
     However,  the  constitutional  framers that  sought  to                                                                    
     protect upper benches  from political meddling, against                                                                    
     their  own convention  consultant's warnings,  yet left                                                                    
     the  lower benches  up to  legislative  control. Up  to                                                                    
     this point, the legislature  ceded 100% control, and it                                                                    
     mirrors  the  "constitutional"   Alaska  Bar  selection                                                                    
     The   Alaska    Constitutional   Convention   Judiciary                                                                    
     Committee Consultants wrote, as  reported by Vic Fisher                                                                    
     in  his book,  "Alaska's Constitutional  Convention." -                                                                    
      No  state  constitution  has ever  gone  this  far  in                                                                    
     placing  one of  the three  branches of  the government                                                                    
     beyond the  reach of democratic controls.  We feel that                                                                    
     in its desire to preserve  the integrity of the courts,                                                                    
     the convention  has gone farther  than is  necessary or                                                                    
     safe (emphasis added)  in putting them in  the hands of                                                                    
     a private professional  group, however, public-spirited                                                                    
     its members may be.                                                                                                        
     Senate  Bill  31   strikes  the  "safe"  constitutional                                                                    
     balance  envisioned  by  the   framers  by  giving  the                                                                    
     governor   and   the    people's   representatives   an                                                                    
     appropriate  say  in  who  sits  on  certain  statutory                                                                    
     benches.  It allows  the governor  to  appoint and  the                                                                    
     legislature to  confirm who fills  magistrate, district                                                                    
     court  and  appellate  judges.   It  still  allows  the                                                                    
     Council  to screen  and recommend  all candidates,  but                                                                    
     the governor is  not mandated to appoint  only from the                                                                    
     Bar  submitted  list.  The governor  can  nominate  and                                                                    
     appoint    Judicial   Council    screened   magistrate,                                                                    
     district, and  appellate judges.  Even then,  the final                                                                    
     "safety" cross  check would  be an up  or down  vote on                                                                    
     each   appointment  to   the   lower   courts  by   the                                                                    
     The  sponsor  respectfully  suggests that  lawyers  may                                                                    
     have a conflict  of interest when they  rate judges for                                                                    
     retention. They all may appear  before those judges and                                                                    
     are all  sworn officers of  the court. Imagine  if only                                                                    
     legislators could  nominate who  could run  for office!                                                                    
     Do they gain  favor with judges they helped  get on the                                                                    
     bench? Do they lose favor  with those they rate poorly,                                                                    
     or vote  against? The Constitution is  clear, all power                                                                    
     is derived  from the people,  not the Bar or  any other                                                                    
     private  or trade  organization. It  is well  past time                                                                    
     the "people's"  branch, the legislature, take  back its                                                                    
     constitutional derived authority in selection of lower                                                                     
     judicial appointments.                                                                                                     
     SB 31 exercises the  authority expressly granted in the                                                                    
     constitution,  for  the  legislature  and  governor  to                                                                    
     prescribe  how Magistrates,  District Court  judges and                                                                    
     Appellant  Court judges  are  nominated and  confirmed.                                                                    
     Thus,   awakening  the   constitutional  framers   long                                                                    
     dormant approach to judicial selections.                                                                                   
4:37:30 PM                                                                                                                    
CHAIR KAWASAKI  asked the  sponsor to  point out  the differences                                                               
between this bill and the forthcoming CS.                                                                                       
CHAIR SHOWER  said the  bottom line is  that magistrates  will be                                                               
removed from the bill, except for the accountability section.                                                                   
4:38:43 PM                                                                                                                    
SENATOR CLAMAN  noted the  reference to 79  times that  the Chief                                                               
Justice voted  to break  a tie when  the council  was considering                                                               
whether or not  to advance a name to the  governor for nomination                                                               
to a judgeship.  He asked  how many times names were advanced and                                                               
the Chief Justice did not participate.                                                                                          
CHAIR SHOWER said he didn't know.                                                                                               
SENATOR CLAMAN asked if it was hundreds or thousands.                                                                           
CHAIR SHOWER  guessed that at best  it would be a  few hundred in                                                               
the history of the state.                                                                                                       
4:40:07 PM                                                                                                                    
SENATOR CLAMAN asked  if he was saying that the  council voted to                                                               
advance a name  to the governor just a few  hundred times without                                                               
the Chief Justice having to cast a vote to break the tie.                                                                       
CHAIR SHOWER  said he thought  that was correct.  He acknowledged                                                               
that  he  didn't  spend  time  researching  that  aspect  of  the                                                               
SENATOR CLAMAN  asked how often in  those 79 times did  the Chief                                                               
Justice vote  in favor of  advancing the  name and how  many time                                                               
did the Chief Justice vote to not advance the name.                                                                             
CHAIR SHOWER replied he didn't ask  for that data; he only wanted                                                               
to  show that  it does  happen.  He didn't  want it  to become  a                                                               
political issue.                                                                                                                
4:44:56 PM                                                                                                                    
SENATOR CLAMAN said his quick review  of the material in the bill                                                               
packet  indicated that  a substantial  majority of  the time  the                                                               
Chief  Justice voted  to advance  the  name to  the governor  for                                                               
consideration. He  disputed the  notion that  it was  a political                                                               
process, and expressed interest in  the sponsor's office doing an                                                               
accounting so  the committee  knows how  often the  Chief Justice                                                               
voted against advancing a name.                                                                                                 
CHAIR  SHOWER  said  he'd  try  to  get  the  data.  He  directed                                                               
attention to  a document in  the bill packets that  describes how                                                               
Alaska  judges  currently are  selected,  with  the exception  of                                                               
magistrates. SB  31 suggests  using the  same attorney  pool, the                                                               
Judicial Council still  vets and screens the  candidates, and the                                                               
governor  would make  the selection.  If the  governor rejects  a                                                               
selection, it  triggers a second  round. In the second  round the                                                               
governor would  choose two names  and the judicial  council would                                                               
choose  up to  four more  names, the  governor would  choose from                                                               
those  names,  and the  legislature  would  vote to  confirm  the                                                               
judges. This would  apply to district and  appellate courts; this                                                               
would apply to 24 judges.                                                                                                       
SENATOR CLAMAN  asked if he  agreed that all judges  currently go                                                               
through the same process for appointment.                                                                                       
SENATOR SHOWER said yes.                                                                                                        
SENATOR CLAMAN  opined that if some  judges were to go  through a                                                               
processes that  is not pursuant  to the constitution,  they would                                                               
be  more likely  to approach  things with  a different  degree of                                                               
rigor or differently  than judges who were  appointed pursuant to                                                               
the  constitutional process.  This  would  invite more  appellate                                                               
litigation and  more disagreement amongst the  district court and                                                               
the courts  of appeals  with the superior  court and  the Supreme                                                               
Court. He  said it seems that  the proposed process would  not be                                                               
as good as the current process.                                                                                                 
4:46:27 PM                                                                                                                    
CHAIR  SHOWER   maintained  that  he  was   suggesting  what  the                                                               
constitutional founders  said to do.  The judges will  follow the                                                               
rules the Supreme Court sets. He didn't see an issue.                                                                           
SENATOR CLAMAN asked  if he could point to an  example in which a                                                               
magistrate  was found  to owe  a duty  of loyalty  to a  superior                                                               
court judge.                                                                                                                    
SENATOR  SHOWER said  that's unprovable,  but  it's a  reasonable                                                               
4:48:45 PM                                                                                                                    
SENATOR CLAMAN asked if the  Commission on Judicial Conduct looks                                                               
at the  conduct of judges  and magistrates and takes  action only                                                               
if they are doing something inappropriate.                                                                                      
CHAIR SHOWER offered his understanding  that the commission would                                                               
investigate a complaint that was filed.                                                                                         
CHAIR  KAWASAKI  advised that  testimony  could  be submitted  to                                                               
4:50:40 PM                                                                                                                    
CHAIR KAWASAKI opened public and invited testimony on SB 31.                                                                    
4:50:48 PM                                                                                                                    
BETTY JO  MOORE, representing  self, Anchorage,  Alaska, provided                                                               
invited testimony  in support  of SB 31.  She stated  that Alaska                                                               
needs  judicial reform  because not  all judges  follow the  law,                                                               
which  violates citizens'  constitutional  rights.  She said  the                                                               
selection of  judges should  never be  controlled by  a political                                                               
party  or  the  Alaska  Bar.  Alaska  needs  judges  who  protect                                                               
Alaskans against injustices. She quoted  a statement from a group                                                               
of justices  who acknowledged that  too often  African Americans,                                                               
Alaska Natives,  and other people  of color are not  treated with                                                               
dignity  and respect  and  that as  judicial  officers they  were                                                               
committed to do more to change this reality.                                                                                    
MS. MOORE stated that another  group of people who aren't treated                                                               
with  the  respect  they  deserve  are  the  people  without  the                                                               
education,  financial means,  or necessary  political connections                                                               
to protect their constitutional  rights to protect their children                                                               
from the  states foster care  system. She questioned  whether the                                                               
people in jail for crimes  they didn't commit actually received a                                                               
fair trial.  She mentioned a  survey mailed several weeks  ago to                                                               
all  Senators and  Representatives asking  about the  Kenai Grand                                                               
Jury investigation  and judicial corruption. Ms.  Moore recounted                                                               
the  letters  she  had  written  highlighting  the  wrongful  and                                                               
inaccurate facts in  an order that a superior  court judge wrote,                                                               
the imbalance in the judicial  system, and judicial violations of                                                               
constitutional  rights. She  charged  that  there was  documented                                                               
proof of corruption among Alaskan  judges and that they needed to                                                               
be  impeached.   She  emphasized   the  need  to   stop  judicial                                                               
corruption and that the remedy was for  SB 31 to become law and a                                                               
constitutional convention to be called.                                                                                         
4:55:14 PM                                                                                                                    
SENATOR  WIELECHOWSKI asked  what percent  of Alaskan  judges she                                                               
believed were corrupt.                                                                                                          
MS. MOORE answered that she  wouldn't give a percentage until the                                                               
documentation is released, but one  judicial injustice is one too                                                               
SENATOR  WIELECHOWSKI asked  if she  agreed that  the process  to                                                               
remove corrupt judges was through the retention vote.                                                                           
MR.  MOORE  responded that  the  retention  vote process  doesn't                                                               
4:57:42 PM                                                                                                                    
LOREN LEMAN,  former lieutenant  governor and  former legislator,                                                               
Anchorage, Alaska,  provided invited  testimony in support  of SB
31. He relayed a story from  when he was a freshman legislator. A                                                               
member of the opposite party  said Alaska might have a republican                                                               
governor  someday but  his  party would  always  have the  courts                                                               
because of  the way  judges are selected.  Over the  years that's                                                               
been his observation;  over the last 35 years he's  seen just one                                                               
strict constitutionalist  on the Alaska Supreme  Court. He opined                                                               
that  every republican  governor since  statehood had  complained                                                               
about  the  names  the  Judicial  Council  did  not  advance.  He                                                               
provided examples. He described the  current system as broken and                                                               
SB 31 as a creative solution.                                                                                                   
5:02:16 PM                                                                                                                    
FRITZ PETTYJOHN, former legislator and  member of the Alaska bar,                                                               
Anchorage, Alaska,  provided invited  testimony in support  of SB
31.  He  mentioned  a  course  he took  during  law  school  that                                                               
advocated  for lawyers  to  advance social  justice.  He said  he                                                               
didn't  believe  it then  and  he  hadn't  changed his  mind.  He                                                               
believes  that  somebody  who wants  to  advance  social  justice                                                               
should run for the legislature, which  he did. He opined that the                                                               
idea that  part of the job  of judges and justices  is to advance                                                               
social justice is an anathema; their  job is to interpret the law                                                               
as written. Their  job is not to create the  law. He said there's                                                               
a fight  in this  country over US  Supreme Court  justices; there                                                               
are conservatives who believe in  judicial restraint and liberals                                                               
who believe in  judicial activism. He maintained  that the reason                                                               
Alaska  doesn't have  that  conflict is  because  the Alaska  Bar                                                               
Association  is  overwhelmingly  weighted  with  individuals  who                                                               
believe that  judges and the  court system should  advance social                                                               
justice. He called that backward and opined that SB 31 was a                                                                    
small step in the right direction.                                                                                              
SENATOR SHOWER thanked the committee for staying late to hear                                                                   
the testimony.                                                                                                                  
5:06:06 PM                                                                                                                    
CHAIR KAWASAKI held SB 31 in committee with public testimony                                                                    

Document Name Date/Time Subjects
SB 32 Sponsor Statement_.pdf SSTA 2/23/2023 3:30:00 PM
SB 32
Sectional Analysis for SB 32.pdf SSTA 2/23/2023 3:30:00 PM
SB 32
SB 32 - Supporting Document - Chokehold 2.7.2023.pdf SSTA 2/23/2023 3:30:00 PM
SB 32
SB 31 - Sponsor Statement - Copy1.pdf SSTA 2/23/2023 3:30:00 PM
SB 31
SB 31 Sectional.pdf SSTA 2/23/2023 3:30:00 PM
SB 31
Vote Tally Sheets of 79 CJ Votes.pdf SSTA 2/23/2023 3:30:00 PM
SB 31
SB 32 PowerPoint Presentation 1.19.2023 - Copy.pdf SSTA 2/23/2023 3:30:00 PM
SB 32
SB 28 Sponsor Statement version A 2.20.2023.pdf SSTA 2/23/2023 3:30:00 PM
SB 28
SB 28 Research - State Laws on Workplace Restraining Orders 9.1.2015.pdf SSTA 2/23/2023 3:30:00 PM
SB 28
SB 28 Sectional Analysis version A 2.21.2023.pdf SSTA 2/23/2023 3:30:00 PM
SB 28
SB 31 Additional backup2.pdf SSTA 2/23/2023 3:30:00 PM
SB 31
sb32_gray-jackson_tobin_oppose.pdf SSTA 2/23/2023 3:30:00 PM
SB 32