Legislature(2003 - 2004)

09/30/2004 09:12 AM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
                         JOINT MEETING                                                                                        
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                       September 30, 2004                                                                                       
                                                                                                                              
TAPES 04-73, 74, 75, 76                                                                                                       
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
SENATE JUDICIARY                                                                                                                
                                                                                                                                
 Senator Ralph Seekins, Chair                                                                                                   
 Senator Gene Therriault                                                                                                        
 Senator Johnny Ellis                                                                                                           
 Senator Hollis French                                                                                                          
                                                                                                                                
HOUSE JUDICIARY                                                                                                                 
                                                                                                                                
 Representative Lesil McGuire, Chair                                                                                            
 Representative Tom Anderson, Vice Chair                                                                                        
 Representative Jim Holm                                                                                                        
 Representative Dan Ogg                                                                                                         
 Representative Ralph Samuels                                                                                                   
 Representative Les Gara                                                                                                        
 Representative Max Gruenberg                                                                                                   
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
SENATE JUDICIARY                                                                                                                
                                                                                                                                
 All members present                                                                                                            
                                                                                                                                
HOUSE JUDICIARY                                                                                                                 
                                                                                                                                
 All members present                                                                                                            
                                                                                                                                
OTHER MEMBERS PRESENT                                                                                                         
                                                                                                                              
 Senator Thomas Wagoner                                                                                                       
 Senator Lyda Green                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
^OVERVIEW: JUDICIAL SELECTION PROCESS IN ALASKA                                                                               
 Invitees:                                                                                                                    
 Alexander Bryner, Chair, Alaska Judicial Council and Chief                                                                     
 Justice, Alaska Supreme Court                                                                                                  
 Judge Tom Stewart, retired                                                                                                     
 Mr. Larry Cohn, Executive Director, Alaska Judicial Council                                                                    
 Mr. Bob Groseclose, Alaska Judicial Council member                                                                             
 Mr. Doug Bailey, Alaska Judicial Council member                                                                                
 Ms. Gigi Pilcher, Alaska Judicial Council member                                                                               
 Mr. Jonathan Katcher, President-elect, Alaska Bar Association                                                                  
 Ms. Sidney Billingslea, Alaska Trial Lawyers' Association                                                                      
 Mr. Scott Nordstrand, Deputy Attorney General, Civil Division,                                                                 
 Department of Law (DOL)                                                                                                        
 Mr. Michael Corey, Anchorage civil attorney                                                                                    
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 04-73, SIDE A [SENATE JUD TAPE]                                                                                          
                                                                                                                                
CHAIR RALPH SEEKINS  called the joint meeting  between the Senate                                                             
Judiciary  Standing Committee  and the  House Judiciary  Standing                                                               
Committee to order at 9:12 a.m.  He announced a discussion of the                                                               
judicial selection process in Alaska.                                                                                           
                                                                                                                                
CHIEF  JUSTICE ALEXANDER  BRYNER introduced  Eleanor Andrews  and                                                               
Bill Gordon,  non-attorney members  of the Judicial  Council, and                                                               
Douglas  Bailey,  Robert  Groseclose,  Susan  Orlansky  and  Gigi                                                               
Pilcher,  attorney  members. He  said  that  the Alaska  judicial                                                               
system is regarded as  one of the best in the  nation, but it did                                                               
not happen  by accident. The Alaska  constitution established the                                                               
Alaska  Judicial Council  (AJC)  as an  independent  body of  six                                                               
people that selects  nominees on the basis of  merit. He reviewed                                                               
the rules for  selection to the council and how  to easily access                                                               
its  website.  He  said  the criteria  used  for  applicants  are                                                               
professional    competence,    integrity,   fairness,    judicial                                                               
temperament   and   suitability   of  experience.   The   minimum                                                               
qualification  every judicial  applicant needs  is to  be a  good                                                               
lawyer. A bar  poll is conducted and  written recommendations and                                                               
comments from judges, other attorneys  and previous employers are                                                               
solicited; a  written sample from  the applicants  is scrutinized                                                               
as  well  as a  statement  of  their  views and  interests.  Each                                                               
applicant  has a  complete background  and employer  verification                                                               
check.  The   results  of  this   system  are  evaluated   by  an                                                               
independent statistical contractor, who  makes the data available                                                               
to   the  council   members  who   can  then   use  it   to  spot                                                               
irregularities.  Background  checks  are done  for  conflicts  of                                                               
interest  and  financial  and   litigation  histories.  The  most                                                               
important  two  parts  of the  council's  consideration  are  the                                                               
personal interviews  and the public  comments it  solicits, which                                                               
need to be expanded, especially among the larger populations.                                                                   
                                                                                                                                
He  emphasized   the  need  for   the  council  to   protect  the                                                               
confidentiality   of   people   who  report   information   about                                                               
candidates   based   on   personal  knowledge   and   application                                                               
information   that  contains   sensitive   personal  and   family                                                               
information  that  goes  beyond disclosure  requirements  of  the                                                               
Public Records Act.                                                                                                             
                                                                                                                                
CHIEF JUSTICE BRYNER related that  one of three frequently voiced                                                               
concerns is that  the judicial selection process  is dominated by                                                               
the bar.  One theory is that  the council consists of  three non-                                                               
judicial members,  three bar members  and a chief  justice, which                                                               
could result  in a  possible 4  - 3 dominant  vote for  the bar's                                                               
interests. He urged the committee  to talk to council members and                                                               
get their opinions.  However, the council has rarely split  3 - 3                                                               
along attorney/non-attorney  member lines.  The second  theory of                                                               
bar domination  is that attorneys  have a  "superior intimidation                                                               
factor" that  allows them  to dominate  the council.  However, he                                                               
said, "I  just don't think that's  there - if you  ask the people                                                               
who know  - and they are  the public members of  the council, you                                                               
won't find much support for that proposition."                                                                                  
                                                                                                                                
The second  area of  criticism is that  the selection  process is                                                               
dominated  by the  bar  poll;  however, it's  hard  to start  the                                                               
selection  process  without  knowing   how  the  bar  regards  an                                                               
attorney. The  important thing  to remember is  that the  poll is                                                               
just a  starting point.  Also, non-bar  members are  normally not                                                               
impressed by  attorney credentials  and look at  other attributes                                                               
to differentiate between qualified applicants.                                                                                  
                                                                                                                                
The third criticism is that  because the judicial council focuses                                                               
on  selecting  the  most qualified  applicants  and  because  the                                                               
constitution  requires it  to nominate  only  two applicants,  an                                                               
artificial goal is set for  the number of applicants. However, he                                                               
does not  know of any time  the council has ever  had a conscious                                                               
objective  of only  nominating the  minimum number  of candidates                                                               
and nothing  indicates a pattern  of establishing a  number. This                                                               
historical record of the voting  process shows all the applicants                                                               
who applied, who were submitted and selected.                                                                                   
                                                                                                                                
     In most  cases more  than the  minimum number  of names                                                                    
     were submitted.  In some cases,  all of  the applicants                                                                    
     were  submitted.  In  a few  cases,  only  the  minimum                                                                    
     number  of  names  go. There's  just  no  pattern  that                                                                    
     indicates the existence of any established criteria.                                                                       
                                                                                                                                
CHIEF JUSTICE BRYNER said further:                                                                                              
                                                                                                                                
     So,  can the  system be  improved?  I think  it can.  I                                                                    
     think we have  a great system; I think it  does a great                                                                    
     job. I think it's a leader  in the nation, but like any                                                                    
     system, I think it can be  improved and I think that is                                                                    
     a  crucial   component  of  the  council's   role.  The                                                                    
     constitution  tells  the  council to  select  the  most                                                                    
     qualified  applicants  according  to rules  it  adopts.                                                                    
     We've adopted  the rules  and because  the constitution                                                                    
     gives  us  the  obligation of  adopting  and  enforcing                                                                    
     rules that  work, it's our responsibility,  I think, to                                                                    
     ride herd  over those rules  to make sure that  they do                                                                    
     what they're supposed  to do and to improve  them if we                                                                    
     think they  can be  improved.... I very  strongly favor                                                                    
     making sure the  council does what it's  supposed to do                                                                    
     and  in that  respect, I  think the  council recognizes                                                                    
     that it has  an obligation to listen to  all sectors of                                                                    
     the community - to both the  public at large and to all                                                                    
     branches of government  - to hear from  them and invite                                                                    
     their views....  I'm always ready  to consider  ways to                                                                    
     make  it  better, but  I  think  that  both I  and  the                                                                    
     council will  be very reluctant  to respond  to demands                                                                    
     that we change  the process to be  something other than                                                                    
     what the constitution requires.                                                                                            
                                                                                                                                
REPRESENTATIVE  SAMUELS  asked  if  the  council  interviews  all                                                               
applicants or if the bar poll uses a bit of a screening process.                                                                
                                                                                                                                
CHIEF  JUSTICE   BRYNER  replied   that  the   council  typically                                                               
interviews all applicants, but there  are no duplicate interviews                                                               
for simultaneous applications or when  there is a new position in                                                               
a short  period of  time, like  a month,  and membership  has not                                                               
changed.                                                                                                                        
                                                                                                                                
REPRESENTATIVE RALPH  SAMUELS asked why  a bar poll  rating would                                                               
change for an applicant who  applies in different districts or at                                                               
a different time.                                                                                                               
                                                                                                                                
CHIEF JUSTICE BRYNER replied that  results historically have been                                                               
fairly  consistent. However,  from community  to community,  it's                                                               
easy for  results to change.  More regional attorneys  reply when                                                               
an applicant is from their region.                                                                                              
                                                                                                                                
REPRESENTATIVE  SAMUELS  asked  him  if  that  was  viewed  as  a                                                               
problem.                                                                                                                        
                                                                                                                                
CHIEF JUSTICE  BRYNER replied that  statistics compiled  from the                                                               
poll  indicate  whether   a  candidate  is  strong   or  not.  If                                                               
candidates generate  strong local  support and very  weak support                                                               
otherwise, all of that is apparent in the final statistics.                                                                     
                                                                                                                                
CO-CHAIR LESIL  MCGUIRE asked  how the  public could  become more                                                               
involved in the selection process.                                                                                              
                                                                                                                                
     Is  it  appropriate  for them  to  participate  in  the                                                                    
     initial polling  - those of  them who have  been before                                                                    
     judges  in  civil  cases? Is  it  appropriate  to  poll                                                                    
     business  and  community  leaders  or is  it,  in  your                                                                    
     opinion, more a matter  of making the public commentary                                                                    
     process more open or the public more aware of it?                                                                          
                                                                                                                                
CHIEF JUSTICE BRYNER responded that  it's a complicated issue and                                                               
all of  the legitimate  approaches need to  be taken.  The public                                                               
needs  to  become more  involved  in  the initial  evaluation  of                                                               
applicants on a more regular basis than what happens now.                                                                       
                                                                                                                                
TAPE 04-73, SIDE B                                                                                                            
                                                                                                                              
CHIEF JUSTICE  BRYNER explained  that once a  person has  been in                                                               
the  system, comments  are solicited  from the  people they  work                                                               
with  -  like  attorneys,  social   workers,  jurors  and  police                                                               
officers -  as part  of the  retention bar  poll. He  thought the                                                               
public  had  to become  more  educated  about the  importance  of                                                               
government as a whole.                                                                                                          
                                                                                                                                
SENATOR JOHNNY  ELLIS said  he thought we  had a  great selection                                                               
process and asked  what the "tipping point"  is between qualified                                                               
and highly qualified applicants.                                                                                                
                                                                                                                                
CHIEF JUSTICE  BRYNER replied that  he wasn't the best  person to                                                               
ask since he hadn't had to break  a vote but, if he did, he would                                                               
look at judicial temperament, integrity,  fairness, etc. When the                                                               
interviews are done,  the council deliberates on the  people as a                                                               
whole much  like a  jury and  tries to arrive  at a  consensus on                                                               
what  people  stand out  as  the  best  qualified in  the  group.                                                               
Factors that  come into  that are the  location of  the judgeship                                                               
and  the  strength  of  the competition.  He  didn't  think  that                                                               
process could be mechanized.                                                                                                    
                                                                                                                                
REPRESENTATIVE LES  GARA asked him  to explain why  someone would                                                               
be  nominated  for one  judgeship  but  not  for another  and  if                                                               
someone's name was  submitted once, should it be sent  up all the                                                               
time.                                                                                                                           
                                                                                                                                
CHIEF JUSTICE  BRYNER replied that his  prior responses addressed                                                               
that issue  somewhat, but  a particular  candidate in  Kodiak had                                                               
extremely strong ties to the community  and a large segment of it                                                               
supported him  and a number  of other candidates. It  was obvious                                                               
that the community's high regard  for him had a tremendous impact                                                               
on the  council. In  another community  where the  competition is                                                               
different, the Kodiak  applicant would not have the  same ties or                                                               
the same support.  The level of judgeship matters,  too. You have                                                               
to have  more experience to be  on the superior court  and handle                                                               
the  complicated  jurisdiction cases  it  gets  compared to  less                                                               
complex cases in a district court.                                                                                              
                                                                                                                                
REPRESENTATIVE SAMUELS  asked if someone  who is already  a judge                                                               
would  have  a leg  up  on  everyone else  if  he  applied for  a                                                               
transfer to another  office since he had already  qualified to be                                                               
a judge.                                                                                                                        
                                                                                                                                
CHIEF JUSTICE  BRYNER replied  that he would  have to  go through                                                               
the same process  as everyone else to move  to another judgeship.                                                               
However, the Supreme  Court might have the  authority to transfer                                                               
district court  judges within judicial  districts on  a temporary                                                               
basis. The  council's goal  is to  pick the  best from  among the                                                               
qualified applicants for a particular position.                                                                                 
                                                                                                                                
REPRESENTATIVE JIM  HOLM asked if public  advocates (guardians ad                                                               
lidem) acting  as trustees  for senior  citizens are  included in                                                               
the retention interviews.                                                                                                       
                                                                                                                                
CHIEF JUSTICE BRYNER answered that he thought they were.                                                                        
                                                                                                                                
An  unidentified  person  was  sure  they  are  included  in  the                                                               
surveys.                                                                                                                        
                                                                                                                                
REPRESENTATIVE HOLM asked if the  council would move an applicant                                                               
from qualified  to most  qualified status  based upon  whether or                                                               
not he was popular with the public.                                                                                             
                                                                                                                                
CHIEF JUSTICE BRYNER replied that  the survey is not a popularity                                                               
poll and explained his experience  is that public people describe                                                               
real  life experiences  they have  had with  applicants and  that                                                               
they are picked on the basis of competence and integrity.                                                                       
                                                                                                                                
REPRESENTATIVE HOLM  said that another  concern is  that criminal                                                               
defense attorneys are nominated more than prosecutors.                                                                          
                                                                                                                                
CHIEF JUSTICE BRYNER  responded that hasn't been the  case in his                                                               
experience.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HOLM said  another  concern is  that the  arduous                                                               
judicial nomination process has  discouraged people from applying                                                               
for judgeships.                                                                                                                 
                                                                                                                                
CHIEF JUSTICE  BRYNER agreed  that caution  was needed  in making                                                               
the process  too onerous  for applicants, but  there have  been a                                                               
large  number  of judicial  applicants  in  the last  few  years.                                                               
However, the  more judgeships that  are open  in a short  span of                                                               
time,  the harder  it  is  to get  a  consistent  pool of  really                                                               
qualified applicants to pick from.  Alaska has grown tremendously                                                               
over the last 30 years and judges are now aging and retiring.                                                                   
                                                                                                                                
CO-CHAIR  MCGUIRE   said  she  understands  the   reasons  behind                                                               
anonymity and asked  if there are sanctions  or penalties against                                                               
block voting  and deliberate misrepresentation of  an applicant's                                                               
character;  and are  there  oaths or  obligations  that a  lawyer                                                               
takes when  filling out  an application?  She was  also concerned                                                               
that the poll is narrowed to a small group of people in Alaska.                                                                 
                                                                                                                                
     The way you  do it for retention  seems more reasonable                                                                    
     to me because  these are folks who  represent a broader                                                                    
     cross-section   of   our   state  -   that   have   had                                                                    
     contacts.... There are folks  in our community who have                                                                    
     talked about  this - that they're  concerned that there                                                                    
     have  been statements  made about  them that  were done                                                                    
     for political reasons and done without merit.                                                                              
                                                                                                                                
CHIEF JUSTICE  BRYNER responded that  each member of  the council                                                               
would have  a different take  on that  issue, but he  thought the                                                               
best  way to  guard against  block voting  is to  have a  poll in                                                               
which it  can be  seen happening  - and then  it can  be ignored.                                                               
Regarding misrepresentation, comments  are usually subjective and                                                               
if they  are unsigned  or vague,  not much  attention is  paid to                                                               
them. Comments have  more weight if they are  signed by reputable                                                               
people. Serious allegations are always investigated for merit.                                                                  
                                                                                                                                
     If  there  are  misrepresentations by  bar  members,  I                                                                    
     think that apart from whether  there is any criminal or                                                                    
     civil process or  sanction that can be applied  to it -                                                                    
     that  would, I  think  be a  reportable  breach of  the                                                                    
     professional conduct  and would be reported  to the bar                                                                    
     association.                                                                                                               
                                                                                                                                
CO-CHAIR MCGUIRE responded:                                                                                                     
                                                                                                                                
     That's one  of the  main arguments  that's made  in the                                                                    
     article that Representative  Samuels was referencing by                                                                    
     Kevin Clarkson.  It takes a  brave person  sometimes in                                                                    
     the legal  community to  come forward  and point  out -                                                                    
     just like  it takes a  brave person in  the legislative                                                                    
     community to come forward sometimes  and say that maybe                                                                    
     a process that's been in  place for years and years and                                                                    
     years might  have some  things about  it that  could be                                                                    
     improved. One  of the points  that he makes is  that he                                                                    
     really  tries  to ask  himself  if  it's based  on  the                                                                    
     person's  true  performance  and  not  based  on  their                                                                    
     political preferences or biases.                                                                                           
                                                                                                                                
REPRESENTATIVE  MAX GRUENBERG  said he  is concerned  that it  is                                                               
possible for  the legislature to  divest the judicial  council of                                                               
any role  in the nomination  of appellate court judges,  who hear                                                               
99 percent  of the criminal  appeals, and district  court judges,                                                               
who hear  far more  cases than the  superior court  judges, while                                                               
supreme and  superior court judges  have the  internal protection                                                               
of the constitution.                                                                                                            
                                                                                                                                
     I  want  to  make  sure the  judicial  council  remains                                                                    
     involved   constitutionally    -   a   constitutionally                                                                    
     protected  mandate over  the  nomination  of those  two                                                                    
     types of judges just as  they do over the supreme court                                                                    
     justices  and  superior  court judges  -  so  that  the                                                                    
     legislature couldn't go  off on its own  and divest the                                                                    
     judicial  council  of any  role  in  the nomination  of                                                                    
     those two types of jurists.                                                                                                
                                                                                                                                
CHIEF JUSTICE  BRYNER replied  as chair  of the  Judicial Council                                                               
that:                                                                                                                           
                                                                                                                                
     The  constitution creates  the  superior  court as  the                                                                    
     trial  court of  general jurisdiction  and creates  the                                                                    
     supreme  court.  It  gives  the  legislature  power  to                                                                    
     create other  courts and the legislature  has, in fact,                                                                    
     created  the  district  court, a  limited  jurisdiction                                                                    
     trial court  and the court  of appeals to  hear appeals                                                                    
     of   first  instance   in  all   criminal  cases.   The                                                                    
     legislature, at  the same time  has decided  to subject                                                                    
     those, of course,  to the same selection  process as it                                                                    
     has  to our  other  courts. Both  of  those courts  are                                                                    
     statewide courts  - full courts of  record. They're not                                                                    
     limited  non-record courts  like magistrate  systems or                                                                    
     things  like that.  My personal  experience is  that it                                                                    
     was a wise decision for  the legislature to treat those                                                                    
     statutory courts and constitutional  courts by the same                                                                    
     selection process -  apart from the fact  that it would                                                                    
     create  practical  difficulties  to come  up  with  and                                                                    
     implement  and maintain  a  separate selection  process                                                                    
     for   the   statutory   court   as   opposed   to   the                                                                    
     constitutional court.  I think it invites  creating two                                                                    
     different kinds of courts in a unified court system.                                                                       
                                                                                                                                
     Historically,  our  district  courts and  our  superior                                                                    
     courts as  trial courts have worked  very well together                                                                    
     as a unified court system.  If we have a superior court                                                                    
     judge  who  is  absent  in a  small  location,  we  can                                                                    
     appoint a  district court  judge pro  tem to  fill that                                                                    
     judge's shoes.  It's tremendously useful to  have that.                                                                    
     We  have  cases  that  can   move  very  smoothly  from                                                                    
     district court to superior court.                                                                                          
                                                                                                                                
     On  the   appellate  level  -   we  have  a   court  of                                                                    
     appeals...that  handles virtually  all of  our criminal                                                                    
     cases   and...ends  up   being  the   court  of   final                                                                    
     jurisdiction because  the supreme court takes  very few                                                                    
     of  those  cases,  because  it   views  them  as  being                                                                    
     correctly  decided. If  you create  different selection                                                                    
     methods with  different selection criteria for  the two                                                                    
     courts, you invite attorneys to  try to get their cases                                                                    
     in superior court instead of  in district court if they                                                                    
     don't  like  the  district court,  if  they  think  the                                                                    
     district court  is doing a  different job  because it's                                                                    
     got  people  of  different qualifications.  You  invite                                                                    
     more challenges  of court  of appeal  decisions because                                                                    
     litigants aren't satisfied with  the treatment they got                                                                    
     from a different kind of  judge. So, you kind of invite                                                                    
     the  perception that  we have  two  different kinds  of                                                                    
     courts -  a statutory court and  a constitutional court                                                                    
     - and  jockeying and  a tactical  strategic maneuvering                                                                    
     by  litigants to  try and  get to  the court  that they                                                                    
     want to  get into. One  of the strengths of  the Alaska                                                                    
     justice system is that it  isn't parsed out and divided                                                                    
     into  municipal  courts  and county  courts  and  state                                                                    
     courts.  Our government  statewide is  a state  unified                                                                    
     government and  it is a  tremendous strength -  I think                                                                    
     in both  organization and  efficiency and...frankly...I                                                                    
     always  assume   that's  the  reason   the  legislature                                                                    
     created district  courts and  the court of  appeals and                                                                    
     gave the  council the authority  to treat  those courts                                                                    
     as regular courts.                                                                                                         
                                                                                                                                
REPRESENTATIVE   GRUENBERG   asked   if  the   governor's   final                                                               
appointment process should be public  and have standards like the                                                               
application process.                                                                                                            
                                                                                                                                
CHIEF JUSTICE BRYNER replied no.  A governor appoints like a jury                                                               
deliberates  -  it reaches  a  consensus  and then  delivers  the                                                               
result.                                                                                                                         
                                                                                                                                
REPRESENTATIVE SAMUELS  asked if  the council had  ever overruled                                                               
the bar poll in the time he had been there.                                                                                     
                                                                                                                                
CHIEF  JUSTICE BRYNER  answered  that the  council has  numerical                                                               
rankings to the  decimal point and had probably  taken people out                                                               
of order,  but he wasn't aware  of anyone who was  taken from the                                                               
bottom of the list  and moved to the top. A  fair number of races                                                               
have had tight groups of ratings.                                                                                               
                                                                                                                                
REPRESENTATIVE SAMUELS  asked if only  the lawyer members  of the                                                               
council  are picking  lawyers  or is  the  whole council  picking                                                               
them.                                                                                                                           
                                                                                                                                
CHIEF JUSTICE BRYNER replied that  the law states that all judges                                                               
must be  attorneys, but the  real question  is if the  council is                                                               
doing its  job of  getting the good  attorneys and  then deciding                                                               
which ones will make the best judges.                                                                                           
                                                                                                                                
CO-CHAIR SEEKINS  asked if  he had ever  seen the  person highest                                                               
ranked by  the bar poll not  be selected by the  Judicial Council                                                               
in its final process.                                                                                                           
                                                                                                                                
CHIEF JUSTICE  BRYNER replied yes, that  happens fairly regularly                                                               
at  both  the gubernatorial  and  the  council levels.  The  very                                                               
highest people  are often  passed up if  there are  good reasons,                                                               
which there often are.                                                                                                          
                                                                                                                                
REPRESENTATIVE DAN  OGG said  he is  a lawyer  and many  times he                                                               
doesn't  know the  people on  the bar  polls because  they're not                                                               
from  his  area. He  asked  what  percentage of  surveyed  people                                                               
respond to the bar polls.                                                                                                       
                                                                                                                                
CHIEF JUSTICE  BRYNER replied that different  polls for different                                                               
judgeships create  lesser or greater  amounts of interest  and he                                                               
couldn't give him a general answer.                                                                                             
                                                                                                                                
CO-CHAIR SEEKINS  asked Mr.  Cohn to  provide the  committee with                                                               
that information at some time  after the meeting. He replied that                                                               
he'd be happy to.                                                                                                               
                                                                                                                                
REPRESENTATIVE OGG asked  if there are instances when  all of the                                                               
candidates  are most  qualified and  what the  highest number  of                                                               
candidates that had been forwarded to the governor was.                                                                         
                                                                                                                                
CHIEF JUSTICE  BRYNER replied  yes to the  first question  and he                                                               
knew of  as many as five  applicants who were all  most qualified                                                               
and were all submitted to the governor at the same time.                                                                        
                                                                                                                                
REPRESENTATIVE  GARA asked  if  the bar  poll  numbers come  from                                                               
people who have  sufficient experience with a person  in the last                                                               
five years.  The polling  numbers from  anybody else  who doesn't                                                               
have the experience with the applicant are put off to the side.                                                                 
                                                                                                                                
CHIEF JUSTICE BRYNER  replied yes. Questions are  asked about the                                                               
basis  of the  vote. People  can indicate  whether it's  based on                                                               
personal contact,  reputation or direct  professional experience.                                                               
The information  is charted on  who votes in which  category, but                                                               
only the  ratings that are  submitted by people rating  on direct                                                               
professional experience are used.                                                                                               
                                                                                                                                
REPRESENTATIVE GARA asked if someone  is sent up once, why aren't                                                               
they sent  up all the  time. He also asked  him if he  thought he                                                               
was  treated fairly  by the  Judicial Council  all the  times his                                                               
name was before them.                                                                                                           
                                                                                                                                
CHIEF JUSTICE BRYNER replied:                                                                                                   
                                                                                                                                
     I've  had a  couple of  other times  I applied  and was                                                                    
     appointed to  the Anchorage  District Court  and served                                                                    
     for nearly three  years in 1975 and while I  was in the                                                                    
     district  court, I  applied  twice  for superior  court                                                                    
     judges and was not  selected. One of those applications                                                                    
     was I applied  for a superior court  judgeship in Sitka                                                                    
     and  my  name  was  sent  to  the  governor.  I  wasn't                                                                    
     selected; the applicant selected  was a long-time Sitka                                                                    
     attorney and  I certainly didn't feel  slighted by that                                                                    
     poll. I  applied for the  superior court  in Anchorage;                                                                    
     my name  was sent; and  I wasn't selected.  It's always                                                                    
     hard. My name wasn't even  sent to the governor in 1983                                                                    
     or  1984 when  I applied  for the  supreme court.  I've                                                                    
     been on  the court of  appeals for three or  four years                                                                    
     and it  always hurts  personally if you're  not chosen;                                                                    
     that rejection  is a painful  thing. But I  sure didn't                                                                    
     feel  slighted   or  didn't  feel   that  I   had  been                                                                    
     mistreated. I thought it would  have been reasonable to                                                                    
     send my  name to  the governor,  but I  also personally                                                                    
     thought that  reasonable people  can disagree  on that.                                                                    
     And I understand  what they did. So,  my own experience                                                                    
     is that it wasn't a problem.                                                                                               
                                                                                                                                
TAPE 04-74, SIDE A                                                                                                            
                                                                                                                              
SENATOR  FRENCH said  the  bar poll  questionnaire  has boxes  to                                                               
check regarding how knowledge was  acquired of the applicant. One                                                               
of the  boxes is  direct professional  experience; others  ask if                                                               
its substantial and recent, moderate  or limited. "I guess I just                                                               
need  a clarification  on  how you  weigh  substantial nd  recent                                                               
versus moderate and versus limited."                                                                                            
                                                                                                                                
CHIEF JUSTICE BRYNER replied that he preferred to have Mr. Cohn                                                                 
answer that.                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG said:                                                                                                  
                                                                                                                                
     My  recollection is  that there  was  a superior  court                                                                    
     position in the  late 1970s around '79  where there was                                                                    
     a  single vacancy  -  13 applicants  and  about six  or                                                                    
     seven were  sent up  for that.  I actually  applied for                                                                    
     that. My  name was not sent  up and I thought  it was a                                                                    
     fair process.  That's the only time  I've ever applied,                                                                    
     but  on the  form itself  there is  direct professional                                                                    
     experience,  professional  reputation, social  contacts                                                                    
     and  then  insufficient.  There are  various  types  of                                                                    
     criteria  -  legal  ability,  impartiality,  integrity,                                                                    
     judicial  temperament,  diligence, special  skill  etc.                                                                    
     Chief Justice  Bryner, isn't it possible  that somebody                                                                    
     could  have  social  contacts with  somebody  and  know                                                                    
     whether  they  have  a  lot  of  integrity  -  so  that                                                                    
     somebody might personally know an  applicant and have a                                                                    
     lot of experience with them  though they may never have                                                                    
     appeared  before them.  And I'm  wondering whether  the                                                                    
     Judicial  Council  if,  lets   say,  the  person  who's                                                                    
     marking the  form only fills  out those boxes  of which                                                                    
     they have  personal knowledge -  although they  may not                                                                    
     have   been  professional   knowledge  -   whether  you                                                                    
     consider that  sort of thing,  because that  person may                                                                    
     actually know  the candidate far  better than  a person                                                                    
     who  has just  appeared in  front of  them representing                                                                    
     somebody in a DWI or something like that.                                                                                  
                                                                                                                                
CHIEF JUSTICE BRYNER answered:                                                                                                  
                                                                                                                                
     Sure it's possible that there  could be, but then again                                                                    
     the focus of this poll is  to get - to identify quality                                                                    
     attorneys not to identify  generally honest people. And                                                                    
     the  real difficulty  here  is  getting something  that                                                                    
     places an act or focus  on attorney qualifications in a                                                                    
     way that really encourages  the most qualified kinds of                                                                    
     comments. It would  be difficult to separate  out if we                                                                    
     started loosening various categories.                                                                                      
                                                                                                                                
     Nobody  looks at  the bar  poll as  perfection. It's  a                                                                    
     tool that  helps give us  information and  each council                                                                    
     member   decides  how   much   weight   to  give   that                                                                    
     information.  I think  everybody recognizes  that there                                                                    
     are some  people that we  miss and some people  that we                                                                    
     don't. But  we try  and make  up for  that by  having a                                                                    
     tremendous number of other things  that we look for and                                                                    
     cross checks and  by looking over what we  do have. And                                                                    
     if there are  ways to improve it, we do  improve it and                                                                    
     sometimes if we  don't think of ways to  improve it and                                                                    
     we get suggestions - well,  we welcome suggestions. But                                                                    
     I don't think  there is ever a way to  design a perfect                                                                    
     poll  or a  perfect system.  I think  that trick  is in                                                                    
     recognizing  shortcomings and  covering  your bases  by                                                                    
     other information and just doing  the best you can that                                                                    
     way. But we're always  open to suggestions for changing                                                                    
     and improving that kind of process.                                                                                        
                                                                                                                                
CO-CHAIR SEEKINS asked what kinds of questions are asked of the                                                                 
applicants during their personal interviews.                                                                                    
                                                                                                                                
CHIEF  JUSTICE BRYNER  answered  that Larry  Cohn, AJC  executive                                                               
director,  drafts  a whole  series  of  potential questions  that                                                               
center around the council's criteria  and circulates it among the                                                               
members. Members have no limitation  on asking questions that are                                                               
relevant to the applicants' experience. Further he said:                                                                        
                                                                                                                                
     If the  applicant gets into  issues that call  for some                                                                    
     follow  up questions,  there are  frequently follow  up                                                                    
     questions  that   lead  in   the  direction   that  the                                                                    
     applicant wants to take. It's  that kind of process. My                                                                    
     experience  is that,  generally,  it's pretty  business                                                                    
     like  and pretty  perceptive and  sometimes  we do  get                                                                    
     into  very  personal  issues  that  are  troubling  the                                                                    
     applicant. Sometimes  we get  into areas that  are very                                                                    
     case   specific;   sometimes   we  get   into   general                                                                    
     approaches.                                                                                                                
                                                                                                                                
CO-CHAIR   SEEKINS   asked   if   questions   are   asked   about                                                               
philosophical or political affiliation.                                                                                         
                                                                                                                                
CHIEF JUSTICE  BRYNER said  that political  affiliation questions                                                               
aren't asked, but questions are  asked about religious ideas when                                                               
called for  by the direction  the discussion is taking.  A strong                                                               
criminal  defense lawyer  could be  asked whether  he thought  he                                                               
could  judge  fairly  in  criminal  cases,  for  instance.  Party                                                               
affiliation has not been asked.                                                                                                 
                                                                                                                                
CO-CHAIR SEEKINS asked:                                                                                                         
                                                                                                                                
     You  wouldn't  get  into  things  that  would  tend  to                                                                    
     indicate   someone  had   a  liberal   or  conservative                                                                    
     particular  viewpoint in  their  personal lifestyle  or                                                                    
     how they carry out their viewpoint on the law?                                                                             
                                                                                                                                
CHIEF JUSTICE BRYNER replied:                                                                                                   
                                                                                                                                
     I  don't  think  we  would  get  into  that.  We  would                                                                    
     definitely, if we had an  attorney who, for example had                                                                    
     a strong and consistent  background in criminal defense                                                                    
     work and  was known as  a zealous advocate. I  think my                                                                    
     experience is  the council members  would feel  free to                                                                    
     ask, 'Well  is it  going to  be hard  for you  to judge                                                                    
     fairly  in  criminal  cases  and  to  find  people  you                                                                    
     defended  guilty?' Those  kinds of  questions are  fair                                                                    
     and good, but in terms  of 'Are you Republican? Are you                                                                    
     Democrat?'  I've  never been  -  but  then my  personal                                                                    
     experience of  questioning goes back  about a  year and                                                                    
     four months. I've been through  the process. I've never                                                                    
     been  asked those  kinds of  questions and  I've really                                                                    
     never heard them asked.                                                                                                    
                                                                                                                                
CO-CHAIR SEEKINS said:                                                                                                          
                                                                                                                                
     You said  that in some  of the comments that  are made,                                                                    
     some of  these comments sometimes come  in anonymously.                                                                    
     In my own personal  experience, it's very difficult for                                                                    
     me to put  much weight in an anonymous  comment. When I                                                                    
     look to  see what King Solomon  did, he said you  get a                                                                    
     chance  to  look  your  accuser  in  the  eye.  Is  the                                                                    
     opportunity there  for applicants  to do that  if there                                                                    
     is  an  anonymous  comment that  could  possibly  throw                                                                    
     someone out of contention?                                                                                                 
                                                                                                                                
CHIEF JUSTICE BRYNER replied:                                                                                                   
                                                                                                                                
     There isn't  that opportunity there because  that would                                                                    
     -  we give  applicants now  sort  of a  summary of  the                                                                    
     kinds  of  comments  they've   gotten.  We  don't  give                                                                    
     applicants,  now, the  actual comments.  That practice,                                                                    
     in  my recollection,  has changed  from  time to  time.                                                                    
     I've been an applicant at times  when we did get all of                                                                    
     the  comments  and  we  had them  there  and  had  them                                                                    
     available.  Right   now  the  practice,  and   I'm  not                                                                    
     personally aware of it, but  I assume it's because some                                                                    
     of  the  comments are  sensitive  and  that if  they're                                                                    
     revealed  they're  revealed  (indisc.)  disclosure  and                                                                    
     there's a  desire to  avoid setting  up a  situation of                                                                    
     retribution  or  something like  that.  But  we try,  I                                                                    
     think  consistently,   to  give  at  least   enough  an                                                                    
     indication of the nature of  the comments that might be                                                                    
     of concern to give the  applicant a fair opportunity to                                                                    
     address  that in  the course  of  discussion. That  may                                                                    
     very  well  be  -  I personally  never  minded  getting                                                                    
     comments and that's certainly an  area that we can look                                                                    
     at.                                                                                                                        
                                                                                                                                
SENATOR SEEKINS thanked Chief Justice Bryner for testifying and                                                                 
asked him if he had any closing comments.                                                                                       
                                                                                                                                
CHIEF JUSTICE BRYNER responded:                                                                                                 
                                                                                                                                
     I don't  really think I  have any  more to say.  I very                                                                    
     much appreciate  the attention  and effort  that you've                                                                    
     put into  this and I'll  certainly be available  if you                                                                    
     want to hear from me again.                                                                                                
                                                                                                                                
SENATOR SEEKINS: We appreciate your help.                                                                                       
                                                                                                                                
CHIEF JUSTICE BRYNER had one more comment:                                                                                      
                                                                                                                                
     One thing I  do want to say  is I do want  to take this                                                                    
     opportunity to  give credit to  the regular  members of                                                                    
     the  council.   They  serve   as  volunteers.   It's  a                                                                    
     tremendously difficult  job and  at times like  this it                                                                    
     calls  for a  great deal  of  courage on  their part  -                                                                    
     especially the  citizen members who,  I think,  to some                                                                    
     extent, I  really don't  think may  not have  signed on                                                                    
     for this kind  of duty. It's a hard thing  for a lot of                                                                    
     people to  go through and  I think that they  deserve a                                                                    
     lot  of  recognition  in their  willingness  and  their                                                                    
     ability to do it. To  me that's just another measure or                                                                    
     the strength of the process.                                                                                               
                                                                                                                                
CO-CHAIR SEEKINS thanked  him again and invited  Judge Stewart to                                                               
address the committee.                                                                                                          
                                                                                                                                
JUDGE TOM STEWART said he was born  in 1918 and has been close to                                                               
the  decisions that  were made  on  how the  selection of  judges                                                               
should take  place around  1954 when he  was the  Assistant State                                                               
Attorney General. At that time,  he was appointed chairman of the                                                               
Committee  on  Statehood and  Federal  Relations,  which had  the                                                               
function of calling a constitutional  convention. He resigned his                                                               
job as assistant  attorney general and began looking  for ways to                                                               
conduct a  constitutional convention. Federal requirements  in SB
50  were insufficient.  He traveled  across the  country visiting                                                               
political science  departments of  the best universities  and set                                                               
up  draft   legislation  to  carry   out  the  mandates   of  the                                                               
constitution in setting up the state government.                                                                                
                                                                                                                                
The  history of  the merit  system  for the  selection of  judges                                                               
tremendously influenced what the  convention did in adopting what                                                               
was called the Missouri Plan. He recounted to the committee:                                                                    
                                                                                                                                
     It  was  first called  the  Missouri  Plan, but  before                                                                    
     that, the  first proposal of  this type of  approach to                                                                    
     selecting  judges was  by a  Professor Albert  Kales of                                                                    
     Northwestern University  Law School in 1913.  There was                                                                    
     already  a tremendous  dissatisfaction in  many of  the                                                                    
     states  with  the  selection  of   judges  -  which  is                                                                    
     primarily by popular election.                                                                                             
                                                                                                                                
     It was  fostered in Missouri  by Lawrence Hyde  who was                                                                    
     the  Chief Justice  of the  Missouri Supreme  Court. He                                                                    
     and others  were very upset about  the inconsistency of                                                                    
     the  system of  electing judges  in popular  elections.                                                                    
     Basically, judges  came from the ward  office. When the                                                                    
     Republicans were  elected, you got a  Republican judge.                                                                    
     When the  Democrats were elected, the  Republican judge                                                                    
     was thrown  out and  you got  a Democratic  judge. They                                                                    
     reflected   the   politics   with   which   they   were                                                                    
     associated.                                                                                                                
                                                                                                                                
     Another serious  concern was the cost  of elections. In                                                                    
     New  York City,  for  example, today  where they  still                                                                    
     elect judges,  it costs from  $100,000 to  $200,000 for                                                                    
     an individual general jurisdiction  judge to be elected                                                                    
     and he  has to  get that  money from  contributors. The                                                                    
     contributors' ideas about what he  should do in the job                                                                    
     are affected by from where he got the money.                                                                               
                                                                                                                                
     These  were only  some of  the kinds  of problems  that                                                                    
     confronted   the   Missouri    people.   They   had   a                                                                    
     constitutional convention  in 1944. At that  time, they                                                                    
     adopted this  plan called the  Missouri Plan -  for the                                                                    
     selection  of judges.  Following its  being adopted  in                                                                    
     their constitution  in 1944, there were  at least three                                                                    
     attempts to  repeal the language  and the  voters liked                                                                    
     it. The votes were roughly two  to one to keep the plan                                                                    
     in force. It did not  stretch across the whole state of                                                                    
     Missouri;  it affected  really only  St. Louis  and its                                                                    
     surrounding areas  and Kansas  City, their  two largest                                                                    
     cities.  It wasn't  used in  the  smaller places  where                                                                    
     people  were more  likely to  know the  individuals who                                                                    
     were running and to know them as judges.                                                                                   
                                                                                                                                
     One of the  critical elements in Judge  Hyde's view was                                                                    
     the  existence  of an  integrated  bar....  We have  an                                                                    
     integrated  bar  in  Alaska. The  creation  of  it  was                                                                    
     enacted in  1955 when I  was in the legislature  on the                                                                    
     Judiciary Committee. I  participated extensively in the                                                                    
     adopting of  the law creating  the integrated  bar. The                                                                    
     integrated  bar   means  that  there  is   a  statewide                                                                    
     association to  which any  person who  aspires to  be a                                                                    
     lawyer  must   belong  and  must  participate   in  its                                                                    
     business.  Before 1955,  there  were bar  associations,                                                                    
     but  they  were  strictly  local.  They  were  strictly                                                                    
     voluntary organizations.  They had no authority  of any                                                                    
     kind.  But,  Alaska  had   the  integrated  bar,  which                                                                    
     Justice Hyde considered to be significant.                                                                                 
                                                                                                                                
     I  never  knew  Justice  Hyde,  but  I  knew  his  son,                                                                    
     Lawrence Hyde, Jr.,  who was also a  Missouri Judge. He                                                                    
     was the second  dean of what's now  called the National                                                                    
     College of  State Judges. I  attended that in  1967 and                                                                    
     was able  to talk with  him about the operation  of the                                                                    
     system in Missouri.                                                                                                        
                                                                                                                                
     In Alaska,  the Statehood  movement came  about because                                                                    
     of many concerns, but one  of the most serious concerns                                                                    
     that precipitated statehood was  with the judiciary. We                                                                    
     had only  four general  jurisdiction judges  in Alaska;                                                                    
     one in  Juneau, one in  Nome, one in Anchorage  and one                                                                    
     in  Fairbanks. They  were appointed  by the  president;                                                                    
     they   were   not   necessarily  Alaskans.   The   last                                                                    
     territorial  federal district  judge  was  a man  named                                                                    
     Raymond Kelly  and Kelly had  never been in  Alaska. He                                                                    
     had been the  president of the American  Legion; he had                                                                    
     been  very  active  in  Republican  politics  and  when                                                                    
     Eisenhower  was  elected,  Kelly ran  for  governor  of                                                                    
     Michigan  and was  defeated by  Menon  Williams and  he                                                                    
     needed  a job.  So they  made  him a  judge in  Alaska.                                                                    
     That's the way we got judges in the territorial days.                                                                      
                                                                                                                                
     As  it  turns out,  Raymond  Kelly  was a  pretty  good                                                                    
     judge. I practiced  in front of him and  we became good                                                                    
     personal  friends,  but  this  was  happen  stance.  It                                                                    
     wasn't the way to select judges, for sure.                                                                                 
                                                                                                                                
     After  WWII  when Anchorage  burgeoned  and  got up  to                                                                    
     150,000 people with one judge  there, it was impossible                                                                    
     for  that   judge  to   handle  the   criminal  defense                                                                    
     calendar,  much less  a  civil calendar.  I  was a  law                                                                    
     clerk to  Judge Folta  in Juneau and  we spent  most of                                                                    
     the  year  in  Anchorage   helping  out  Judge  Dimond,                                                                    
     because  his calendar  was so  overloaded, he  couldn't                                                                    
     possibly  attend to  the business  that was  before the                                                                    
     court. The problems of the  judiciary were paramount in                                                                    
     the whole statehood movement.                                                                                              
                                                                                                                                
     In the course of my job  as being chairman of the joint                                                                    
     house   and   senate   committee   that   drafted   the                                                                    
     legislation  to call  the convention,  the chairman  of                                                                    
     the senate  committee was  Bill Egan,  but since  I had                                                                    
     done  this research,  he agreed  that I  should be  the                                                                    
     chairman of  the joint house and  senate committee that                                                                    
     determined what  the convention  structure should  be -                                                                    
     how many  people, where it  should be held,  the length                                                                    
     of   time  of   the   session,   the  availability   of                                                                    
     consultants  to assist  the delegates,  the preparatory                                                                    
     work -  all of that  was detailed  in the bill  that we                                                                    
     passed in 1955.                                                                                                            
                                                                                                                                
     In the course of doing  this research, I met two people                                                                    
     who  were significant  and  became  consultants to  the                                                                    
     Alaska convention. One of them  was a man named Sheldon                                                                    
     Elliot.  He  was a  close  associate  of Chief  Justice                                                                    
     Arthur T. Vanderbuilt of the  New Jersey Supreme Court.                                                                    
     When the  New Jersey  courts were reorganized  by their                                                                    
     1946 convention, Vanderbuilt became  the head of it. He                                                                    
     and Sheldon Elliot wrote a  book called Modern Judicial                                                                  
     Administration and  it set out  the principles  for how                                                                  
     courts  ought to  be organized.  Before that  time, the                                                                    
     courts in New  Jersey were county courts.  There was no                                                                    
     central direction of the courts.  The county courts had                                                                    
     varied bases of being  financed. Poor counties got poor                                                                    
     courts;  wealthy counties  got  better  courts. But  he                                                                    
     organized  the   idea  of  a  statewide   court  system                                                                    
     overseen by the  Supreme Court in which  all courts got                                                                    
     the same  treatment in  terms of  financing facilities,                                                                    
     personnel and that sort of thing.                                                                                          
                                                                                                                                
     Sheldon  Elliot, after  he cooperated  with Vanderbuilt                                                                    
     in writing that book,  became the executive director of                                                                    
     the Institute  for Judicial Administration in  New York                                                                    
     City.  I had  met him  and  talked with  him about  our                                                                    
     venture  into writing  a constitution  on  that trip  I                                                                    
     made across the  country. So, I had Elliot's  name as a                                                                    
     possible consultant  for our convention on  the subject                                                                    
     of judicial administration.                                                                                                
                                                                                                                                
     The other  person who was  significant was a  man named                                                                    
     Glenn   Winters.  Glenn   Winters  was   the  executive                                                                    
     director  of  the  American Judicatory  Society,  which                                                                    
     then had its  offices in Chicago and  they were engaged                                                                    
     in extensive  studies about court  systems. He  came to                                                                    
     Alaska and  we met  and I  got to  be a  close personal                                                                    
     friend of his and did a  lot of work with him partly on                                                                    
     the  creation of  the integrated  bar,  because of  the                                                                    
     Judicatory  Society, which  is still  a very  prominent                                                                    
     research  and  study  group  in   the  whole  world  of                                                                    
     judicial   administration.   His  leadership   in   the                                                                    
     Judicatory  Society reflected  his  background in  this                                                                    
     work.                                                                                                                      
                                                                                                                                
     The legislature of '55 structured  the convention and I                                                                    
     became the  executive director of the  Alaska Statehood                                                                    
     Committee  in  April  of  1955.   Bob  Atwood  was  the                                                                    
     chairman  of  the  [Alaska  Statehood]  committee.  The                                                                    
     chairman of  the finance  committee of  the legislature                                                                    
     was a  man named Ken  Johnson of the  Johnson Insurance                                                                    
     Agency.  In preparing  the bill  for the  convention, I                                                                    
     drafted a budget for the  convention proposing how much                                                                    
     of a cost  and where we would get the  funds and worked                                                                    
     closely   with  Ken   Johnson  on   that.  After   that                                                                    
     association, he went to Atwood  and said we'll give you                                                                    
     this  money  for the  convention,  but  I want  you  to                                                                    
     appoint  Stewart to  be the  executive director  of the                                                                    
     Statehood Committee  and carry  out the  functions that                                                                    
     appeared  in the  statute passed  in 1949  creating the                                                                    
     committee  that  directed  them   to  prepare  for  the                                                                    
     holding  of a  constitutional  convention.  Up to  that                                                                    
     point, they had  done almost nothing to  carry out that                                                                    
     mandate. So,  in April, I became  executive director of                                                                    
     the Statehood  Committee and had many  functions.... SB
     50, which  would have  created Alaska  as a  state, had                                                                    
     language  in it  creating  a  convention and  specified                                                                    
     that the convention should be in Juneau, the capital.                                                                      
                                                                                                                                
     On my  trip I  met a  woman in New  Jersey who  was the                                                                    
     vice  president of  the New  Jersey convention  and she                                                                    
     said  you  should hold  your  convention  at the  state                                                                    
     university. I  said we don't  have a  state university;                                                                    
     we have  the Alaska Agricultural College  and School of                                                                    
     Mines.  Hold your  convention there.  Her justification                                                                    
     for  that  recommendation was  they  had  held the  New                                                                    
     Jersey convention  of 1946 at  Rutgers, which  is their                                                                    
     state  university.   It  avoided   entrenched  lobbying                                                                    
     interests;   it  avoided   the   diversions  that   the                                                                    
     legislative members  found in  Juneau. After  a plenary                                                                    
     session  of  the  early   legislatures,  in  the  early                                                                    
     afternoon you  could find the  legislators in  the pool                                                                    
     hall in the  Elks Club playing cards  and otherwise not                                                                    
     being at  work. She said  at the university  setting in                                                                    
     an  academic   atmosphere,  the  availability   of  the                                                                    
     libraries, the availability  of professorial assistance                                                                    
     was very important.                                                                                                        
                                                                                                                                
     So,  when I  came  back  to Juneau,  although  I was  a                                                                    
     denizen,  you might  say, of  Juneau,  I was  convinced                                                                    
     that we should  have our convention in  Fairbanks and I                                                                    
     persuaded  the joint  committee that  that's where  the                                                                    
     convention   should   be  -   at   the   site  of   the                                                                    
     university....                                                                                                             
                                                                                                                                
     They chose  Sheldon Elliot to be  the principal advisor                                                                    
     to the  committee on the  judiciary. Another  man there                                                                    
     named   John  Bebout,   who   had   been  to   numerous                                                                    
     conventions....  who was  very helpful  also as  to how                                                                    
     should  the  judicial  branch be  organized.  They  are                                                                    
     focused on  what has become  known as the  merit system                                                                    
     for  the selection  of judges.  So, the  delegates have                                                                    
     the advantage of hearing from  true national leaders in                                                                    
     this  field of  judicial administration  - what  is the                                                                    
     best mechanism for selecting judges....                                                                                    
                                                                                                                                
JUDGE STEWART read  Judge Hyde's response to the  question of why                                                               
the Missouri Plan was adopted - a  lack of good judges, fear of a                                                               
link  between judges  and  politicians and  a  general desire  to                                                               
elevate the tone of the bench.  "You need the kind of examination                                                               
of qualifications that this council  does in order for the voters                                                               
to  have some  recommendation  of somebody  who is  knowledgeable                                                               
about it."                                                                                                                      
                                                                                                                                
JUDGE STEWART also said:                                                                                                        
                                                                                                                                
     I would make  a comment about the  determination to set                                                                    
     up the  court system.  In that first  state legislature                                                                    
     in 1959... we anticipated it  would take three years to                                                                    
     set up  the court system.  There was a case  pending in                                                                    
     the Ninth Circuit  Court of Appeals -  it was Territory                                                                    
     of  Alaska versus  Parker. I  don't remember  the crime                                                                    
     which  had  been committed,  but  he  had a  very  fine                                                                    
     lawyer by  the name of  Wendell Kay here  in Anchorage.                                                                    
     After the conviction in  the federal territorial court,                                                                    
     he appealed  the conviction to the  Ninth Circuit Court                                                                    
     of  Appeals.  Now,  the Congress  when  it  passed  the                                                                    
     Statehood   Act   in    July   1955   explicitly   gave                                                                    
     jurisdiction to  the territorial  court to  continue to                                                                    
     hear cases in Alaska until  Alaska was able to organize                                                                    
     its court system. And the  original bill, Chapter 50 of                                                                    
     the  session laws  of 1959,  specified  that the  court                                                                    
     system would  be in  effect by  January 1,  1962, three                                                                    
     years after we were working on the subject.                                                                                
                                                                                                                                
     One  of  the points  Wendell  Kay  urged to  the  Ninth                                                                    
     Circuit was  you don't have  jurisdiction to  hear this                                                                    
     appeal for  my client, Mr. Parker.  That's the decision                                                                    
     that the Ninth Circuit made  in the middle of May 1959.                                                                    
     The  Congress  had  given  jurisdiction  to  the  trial                                                                    
     courts,  but they  failed to  give jurisdiction  to the                                                                    
     court  of  appeals to  hear  appeals  from the  interim                                                                    
     trial court until Alaska should  have its court system.                                                                    
     So, that  first legislature  lasted from  January until                                                                    
     well  into May  and we  amended that  bill to  have the                                                                    
     Judicial  Council  immediately   -  forthwith  was  the                                                                    
     language  that was  used -  structured and  appointed -                                                                    
     immediately proceed  to nomination of judges  and go as                                                                    
     quickly  as  possible to  the  formation  of the  court                                                                    
     system. They  did that and  the council was  created in                                                                    
     early June  of 1959;  they nominated the  supreme court                                                                    
     justices;  the governor  appointed  Newell Nesbit,  and                                                                    
     Bill Egan who was the  governor said, 'I appoint you to                                                                    
     be chief  justice.' There was  nothing in  the statutes                                                                    
     that specified how  the chief should be  chosen. And he                                                                    
     appointed  John   Dimond,  who  was  a   fellow  Valdez                                                                    
     resident  of  Bill  Egan's,  and  he  appointed  Walter                                                                    
     Hodge, who had been a territorial judge in Nome.                                                                           
                                                                                                                                
     The  Supreme Court  met and  the Judicial  Council also                                                                    
     named judges.  They named nine  judges of  the Superior                                                                    
     Court compared to  the four that had  been operating in                                                                    
     Alaska before  that time.  Those judges  were appointed                                                                    
     in August  and September of 1959....  Those judges went                                                                    
     to New Jersey for two  weeks meeting with the judges of                                                                    
     the courts in New Jersey  in order to get some personal                                                                    
     experience  about how  a court  system structured  this                                                                    
     way was  going to  function. There were  huge questions                                                                    
     about  space,  where  they  could  meet,  supplies  and                                                                    
     personnel.  There  had   been  four  experienced  court                                                                    
     reporters with the territorial federal  courts - all of                                                                    
     them  were  ready  for  retirement  and  Chief  Justice                                                                    
     Nesbit made  the decision before the  courts even began                                                                    
     to not use court reporters  to report the case record -                                                                    
     instead to  do it electronically with  a company called                                                                    
     Sound  Scriber  - that  he  was  familiar with  -  that                                                                    
     provided  tape machines  on Navy  vessels.  He was  the                                                                    
     captain of  a Navy destroyer. These  tape machines went                                                                    
     very slowly and the recording  head went back and forth                                                                    
     across  the tape  like this  so as  the tape  moved the                                                                    
     recording was  in a triangular formation....  There was                                                                    
     a  lot of  opposition from  the court  reporters across                                                                    
     the nation  to adopt this electronic  system and Alaska                                                                    
     was  the  first   one  to  do  it.  I   was  the  court                                                                    
     administrator  from '61  to '66  and was  much involved                                                                    
     over  the  struggle  in getting  that  system  properly                                                                    
     functioning  and it  has  worked well  to  this day.  I                                                                    
     don't think anybody would want to change it....                                                                            
                                                                                                                                
     In fact, they  were in operation on  February 20, 1960,                                                                    
     barely  a year  after  statehood instead  of the  three                                                                    
     years that we contemplated would be necessary.                                                                             
                                                                                                                                
JUDGE STEWART said he thought the Judicial Council is working                                                                   
excellently.                                                                                                                    
                                                                                                                                
TAPE 04-74, SIDE B                                                                                                            
                                                                                                                              
CO-CHAIR  SEEKINS asked  how many  attorneys  were practicing  in                                                               
Alaska at the time of statehood.                                                                                                
                                                                                                                                
JUDGE STEWART replied probably less  than one third of the number                                                               
that practice now, especially in Anchorage.                                                                                     
                                                                                                                                
CO-CHAIR SEEKINS asked  if they were pretty  well acquainted with                                                               
each other and  when did the bar poll come  into existence and in                                                               
the early  years was a  lot of weight  put on it  for determining                                                               
most qualified applicants for judgeships.                                                                                       
                                                                                                                                
JUDGE  STEWART   answered  that   applicants  were   pretty  well                                                               
acquainted  in their  local districts;  but some  didn't have  as                                                               
much opportunity to  travel around the state. In  1955, after the                                                               
integrated  bar  was  created,   there  were  territory-wide  bar                                                               
conventions that were well attended.  The bar poll began early on                                                               
and  he didn't  know how  much weight  the council  placed on  it                                                               
then.                                                                                                                           
                                                                                                                                
SENATOR FRENCH asked:                                                                                                           
                                                                                                                                
     It's been 40  years since we adopted  the Missouri Plan                                                                    
     and made  it part  of our  judicial system.  Have other                                                                    
     states  tinkered with  their  system  since then?  Have                                                                    
     other  states gone  back  and had  to  modify it  since                                                                    
     then?                                                                                                                      
                                                                                                                                
JUDGE STEWART replied:                                                                                                          
                                                                                                                                
     I don't  know. I  know that  other states  have adopted                                                                    
     the merit system  for the selection of  judges. I can't                                                                    
     tell you  how many. I'm  sure there are still  too many                                                                    
     states  that  have  elective systems.  I  went  to  the                                                                    
     National  Judicial   College  on  the  campus   of  the                                                                    
     University  of  Nevada  at   Reno  where  the  National                                                                    
     Judicial College has been  functioning since almost the                                                                    
     beginning of  its existence and  I met, - in  the years                                                                    
     that I  went there, which was  between '66 and '81  - I                                                                    
     met  many judges  from other  jurisdictions and  I know                                                                    
     that  almost  universally  they  were  envious  of  our                                                                    
     system.                                                                                                                    
                                                                                                                                
CO-CHAIR MCGUIRE asked:                                                                                                         
                                                                                                                                
     In Article 4  of the judiciary of  the constitution for                                                                    
     nomination and appointment - obviously  it sets out the                                                                    
     fact that  the governor shall  fill any vacancy  in the                                                                    
     office of  the supreme court  justice or of  a superior                                                                    
     court judge  by appointing one  of two or  more persons                                                                    
     and  it  sets out  the  judicial  council model  -  the                                                                    
     Missouri Plan.  What, if any, discussion  was had about                                                                    
     the  notion of  including future  state created  courts                                                                    
     and why or why not -  I mean why would they not include                                                                    
     it? Or did the discussion not even occur?"                                                                                 
                                                                                                                                
JUDGE STEWART replied:                                                                                                          
                                                                                                                                
     I'm not a  good person to answer  that question because                                                                    
     as  I said  to Representative  Gruenberg, I  was not  a                                                                    
     delegate. I  was upstairs in an  administrative office.                                                                    
     I did  not hear the  discussions. On the other  hand, I                                                                    
     was close to  many of the delegates. My  father was one                                                                    
     of  the delegates  and in  the evenings  I would  often                                                                    
     meet with the  delegates in hotel rooms  and talk about                                                                    
     what they were doing. But  I can't directly answer your                                                                    
     question - what was in their mind.                                                                                         
                                                                                                                                
REPRESENTATIVE GARA  asked if he  thought the governor  should be                                                               
able to pick from all candidates or just selected ones.                                                                         
                                                                                                                                
JUDGE  STEWART replied  that he  should pick  only from  the most                                                               
qualified candidates based  on the work of  the Judicial Council.                                                               
He elaborated  that it would  be very  easy for any  governor who                                                               
had  a favored  candidate for  judge to  get the  word to  him to                                                               
apply and if he met the  technical qualifications he could be one                                                               
of  the applicants.  The  governor  could then  pick  the man  he                                                               
selected in advance.                                                                                                            
                                                                                                                                
     The system  could be corrupted  if you try to  send him                                                                    
     all  the  names....  But,   directly,  to  answer  your                                                                    
     question,  I am  in  favor  of what  they  are doing  -                                                                    
     deciding themselves how many names ought to go up.                                                                         
                                                                                                                                
CO-CHAIR SEEKINS queried:                                                                                                       
                                                                                                                                
     In that  regard, when you  look at the  merit selection                                                                    
     process that is part of  the Judicial Council's - taken                                                                    
     from  their  web  site  that  says  that  the  Judicial                                                                    
     Council  is  required  to  screen  judicial  applicants                                                                    
     based on their ability to  be fair and competent judges                                                                    
     rather  than   their  political   contributions,  party                                                                    
     connections, or how well they  look on TV. With that in                                                                    
     mind,  do  you  believe  that  the  criteria  that  the                                                                    
     Judicial  Council   uses,  at   this  point   in  time,                                                                    
     adequately fulfills that charge?                                                                                           
                                                                                                                                
JUDGE STEWART replied:                                                                                                          
                                                                                                                                
     I  think it  does a  good job  of that,  but we're  all                                                                    
     humans, we're  all capable of error.  Maybe the process                                                                    
     can be  improved some way.  I'm not that close  to what                                                                    
     they do, but  I think that in answer  to your question,                                                                    
     yes, they do apply the criteria properly.                                                                                  
                                                                                                                                
CO-CHAIR SEEKIN said he still didn't totally understand what the                                                                
criteria are.                                                                                                                   
                                                                                                                                
JUDGE STEWART replied:                                                                                                          
                                                                                                                                
     Mr.  Chairman, it  has  to be  subjective.  How do  you                                                                    
     determine  judicial temperament?  You  really find  out                                                                    
     only after a  person has been a judge -  what he's done                                                                    
     on the  bench. They  are very subjective  questions and                                                                    
     the  people   on  the  council  have   to  apply  their                                                                    
     subjective backgrounds in determining  how they see the                                                                    
     criteria fit a  given applicant and I'm  willing to put                                                                    
     my trust in the judgment of that seven-member group.                                                                       
                                                                                                                                
CO-CHAIR SEEKINS said:                                                                                                          
                                                                                                                                
     I think that's what I'm looking  to try to find out. Is                                                                    
     the process  fair? Is it  consistent? Is  it reasonably                                                                    
     transparent?  Is  it producing  for  us  the very  best                                                                    
     possible  candidates for  selection? That  question has                                                                    
     been  raised numerous  times in  my short  time in  the                                                                    
     Senate as  chair of the Senate  Judiciary Committee and                                                                    
     so I  think it bears looking  into to find out  if this                                                                    
     system that we do have is  the right one and not trying                                                                    
     to tell the  judicial council how to  make their rules.                                                                    
     But is  it the one  that does  produce for us  the very                                                                    
     best judiciary? If not, are  there suggestions we could                                                                    
     make?                                                                                                                      
                                                                                                                                
     I appreciate the fact that I  have received a copy of a                                                                    
     letter  from the  chairman of  the Judicial  Council to                                                                    
     the members saying,  'Lets take a close look  to see if                                                                    
     what we're  doing is the  right thing and see  if there                                                                    
     are changes that are necessary.'  Because I think a lot                                                                    
     has changed  since the days  when we  first - I  was 10                                                                    
     years old in  1955 so I don't have a  lot of history on                                                                    
     how  it came  together, but  I do  know that  a lot  of                                                                    
     things have changed  a lot since then  and I appreciate                                                                    
     the fact that the council is  willing to take a look to                                                                    
     see  if there's  ways  they can  fulfill their  mission                                                                    
     better. And I guess that's  what I'm kind of looking at                                                                    
     with you  as well  and other people  who have  had that                                                                    
     history -  to give us  suggestions that we can  pass on                                                                    
     or how do we or should  we, as a legislature, propose a                                                                    
     change to  the people in  the state of Alaska  in terms                                                                    
     of a constitutional amendment or  whatever. In the end,                                                                    
     we hope to  have said we've turned on the  light and we                                                                    
     either have the best system in  the world or we need to                                                                    
     have the folks  take a look at the system  to see if it                                                                    
     can  be   improved  -  or  we   absolutely  think  it's                                                                    
     necessary that some things be  changed and here are our                                                                    
     suggestions. I  appreciate the fact that  you have that                                                                    
     history because I  don't. Hopefully we can  come out in                                                                    
     the end so that the people  of the state of Alaska feel                                                                    
     confident in the process that  they're getting the very                                                                    
     best judiciary they possibly could.  So, I guess that's                                                                    
     my question. It's very hard  for me to say that there's                                                                    
     any  truly   objective  system  in  the   whole  world.                                                                    
     Everything is somewhat subjective.                                                                                         
                                                                                                                                
JUDGE STEWART: That's right.                                                                                                    
                                                                                                                                
CHAIR SEEKINS: So thank you today - Other questions from                                                                        
members? We have questions from members online by the way.                                                                      
                                                                                                                                
JUDGE STEWART asked to respond briefly:                                                                                         
                                                                                                                                
     I agree wholeheartedly  that it's good for  you to take                                                                    
     a look at the system, but  I'm confident in my own mind                                                                    
     that  you won't  find anything  better. The  appointive                                                                    
     system is  political, the elective system  doesn't work                                                                    
     - I don't  know of any system out there  that any state                                                                    
     uses that's any  better than what we do.  That isn't to                                                                    
     say that it can't be improved upon.                                                                                        
                                                                                                                                
CHAIR SEEKINS responded, "I won't keep us from looking."                                                                        
                                                                                                                                
JUDGE STEWART said, "That's right and I applaud your effort to                                                                  
look into it."                                                                                                                  
                                                                                                                                
REPRESENTATIVE GRUENBERG asked if  they had contemplated that the                                                               
legislature might create additional courts in the future.                                                                       
                                                                                                                                
JUDGE  STEWART   answered  that  he  thought   they  contemplated                                                               
district  courts and  this  decision was  initially  left to  the                                                               
presiding judge  of the  district. He  agreed that  the judiciary                                                               
branch, led by District Court  Judge Bruce Monroe, recommended to                                                               
the  legislature  that  the  Judicial  Council  be  used  in  the                                                               
selection process.                                                                                                              
                                                                                                                                
REPRESENTATIVE GARA asked  if it was possible for  the council to                                                               
favor a special candidate.                                                                                                      
                                                                                                                                
JUDGE STEWART replied:                                                                                                          
                                                                                                                                
     I am confident  that when you look at  it, the Judicial                                                                    
     Council  has not  played a  political game.  The judges                                                                    
     are   about  equally   with  Republican   and  Democrat                                                                    
     backgrounds.... It  could happen, but it's  more likely                                                                    
     to happen  under one  of the other  systems than  it is                                                                    
     under this one.                                                                                                            
                                                                                                                                
SENATOR THERRIAULT commented:                                                                                                   
                                                                                                                                
     One of  the allegations  that I had  heard was  that of                                                                    
     the three names that were  put forward, two of them had                                                                    
     problems  that  would  surely  take  them  out  of  the                                                                    
     running  and therefore  there would  only be  one left.                                                                    
     Now  I have  spoken to  somebody on  the council  whose                                                                    
     word  I value  highly  and he  assured  me that  didn't                                                                    
     happen. But  without having  a better  understanding of                                                                    
     what the  process is  that allowed  the three  names to                                                                    
     rise  above  the  others,  I didn't  have  much  of  an                                                                    
     ability  to assure  the constituents  that  came to  me                                                                    
     that  the process  had  not been  gamed  someway. So  I                                                                    
     think that the discussion is  going to be useful if for                                                                    
     no other reason....                                                                                                        
                                                                                                                                
JUDGE  STEWART heartily  endorsed them  taking a  look to  see if                                                               
things  could be  done better.  "But  that doesn't  stop me  from                                                               
saying I think it's the best system in America today."                                                                          
                                                                                                                                
12:09 - 1:40 - Recess                                                                                                           
                                                                                                                                
MR.  LARRY COHN,  Executive  Director,  Alaska Judicial  Council,                                                               
introduced members of the council in attendance.                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG asked:                                                                                                 
                                                                                                                                
     Something that Judge Stewart said  this morning - a lot                                                                    
     of things  he said were a  lot of interest to  me - but                                                                    
     one thing  in particular.  He talked about  the history                                                                    
     of how  the then  superior court judges  suggested that                                                                    
     the law be amended so  that district court judges would                                                                    
     become  subject  to  nomination  through  the  Judicial                                                                    
     Council.  As I  understand,  that must  have been  done                                                                    
     statutorily. Do you know anything  about the history of                                                                    
     that statutory amendment?                                                                                                  
                                                                                                                                
MR. COHN replied that the constitutional convention minutes                                                                     
discusses judges in general and says the legislature should have                                                                
the power to create other judgeships.                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG asked him to research Judicial Council                                                                 
files for any documentation on what the policy was behind the                                                                   
request to amend Alaska law.                                                                                                    
                                                                                                                                
CO-CHAIR SEEKINS responded by asking Legislative Legal for an                                                                   
opinion on that issue.                                                                                                          
                                                                                                                                
REPRESENTATIVE OGG asked how many lawyers respond to the bar                                                                    
polls.                                                                                                                          
                                                                                                                                
MR. COHN replied:                                                                                                               
                                                                                                                                
     The response rate on our  selection surveys varies from                                                                    
     about 25 to  about 40 percent of the  attorneys that we                                                                    
     survey. And of course,  not all attorneys respond about                                                                    
     each  applicant.  Some  attorneys may  have  sufficient                                                                    
     information  to  respond  to some  applicants  and  not                                                                    
     others.  If  you look  at  any  particular survey,  for                                                                    
     example  the page  that we  gave  you out  of a  recent                                                                    
     survey, it  will show you  how many  attorneys actually                                                                    
     rated   that  person   based  on   direct  professional                                                                    
     experience. It really varies  depending on the location                                                                    
     of the  judgeship. Attorneys that practice  in a larger                                                                    
     urban area obviously are known  by many other attorneys                                                                    
     than attorneys  that practice in  a rural  location and                                                                    
     it varies  on the  type of  practice that  the attorney                                                                    
     has  as the  chief  justice mentioned.  If  a judge  is                                                                    
     applying  for   say  a  higher  judicial   position  we                                                                    
     commonly get  hundreds of people that  respond based on                                                                    
     direct  professional experience.  Whereas  if you  have                                                                    
     someone  who   has  a   fairly  insular   or  parochial                                                                    
     practice,  then we  may get  60-70 people  that respond                                                                    
     based on direct professional experience.                                                                                   
                                                                                                                                
     Our professional surveys  - we do ask  as was discussed                                                                    
     this morning  - I think Representative  Gruenberg asked                                                                    
     -  wouldn't it  be valuable  to know  even if  somebody                                                                    
     knew  somebody based  on reputation  -  wouldn't it  be                                                                    
     valuable  to  know  whether  that  person  had  a  good                                                                    
     reputation for  integrity or other criteria.  And it is                                                                    
     good  to know  and  we do  ask that.  That  is, we  ask                                                                    
     people if  they only  know the applicant  by reputation                                                                    
     or by  social contact  not to fill  out the  survey and                                                                    
     they do  that - and  although we don't  calculate those                                                                    
     numbers  in the  numbers we  release in  press releases                                                                    
     based on  direct professional experience  - as  you can                                                                    
     see from the  sheet that we passed out, we  are able to                                                                    
     see how  those people  fare in those  various criteria,                                                                    
     based simply  on social contacts  and reputation.  So I                                                                    
     think  in this  last  selection survey,  the number  of                                                                    
     people that  rated any  particular applicant,  based on                                                                    
     direct professional  experience, ranged  from something                                                                    
     like  75  to  300  and  something,  I  would  say.  But                                                                    
     generally between 25 and 40 percent return rate.                                                                           
                                                                                                                                
SENATOR HOLLIS FRENCH asked:                                                                                                    
                                                                                                                                
     Mr.  Cohen,  your  last  answer  answered  most  of  my                                                                    
     question, but I  guess I'm still curious  about how, if                                                                    
     you're strictly presenting the bar  poll as being those                                                                    
     folks who have direct  professional experience with the                                                                    
     applicant,   how  do   you  weight   for  whether   the                                                                    
     experience  is  substantial  and recent,  moderate,  or                                                                    
     limited. And maybe you could explain how that works.                                                                       
                                                                                                                                
MR. COHN replied that demographic questions are on the survey                                                                   
and that information is available for the interviewers to use if                                                                
they want.                                                                                                                      
                                                                                                                                
SENATOR FRENCH clarified:                                                                                                       
                                                                                                                                
     So if I understand you  right, it doesn't really matter                                                                    
     what  level of  experience they  have in  producing the                                                                    
     figure - the  bar poll result - but  it's something you                                                                    
     explore in the interview process.                                                                                          
                                                                                                                                
MR. COHEN replied:                                                                                                              
                                                                                                                                
     Yes, sometimes  the scores are  consistent so  there is                                                                    
     really nothing  to ask about on  that particular issue,                                                                    
     but  if there  was  some  discrepancy or  inconsistency                                                                    
     based on the amount  of experience that the respondents                                                                    
     had  with  an  applicant,   that's  something  that  an                                                                    
     applicant might be likely to be asked about.                                                                               
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  how  the council  can tell  what                                                               
kind  of experience  a  lawyer  has had  with  an applicant  from                                                               
information on the survey.                                                                                                      
                                                                                                                                
MR. COHN answered:                                                                                                              
                                                                                                                                
     We  ask  demographic  information  about  the  type  of                                                                    
     practice that you  have so that we can  identify you as                                                                    
     an attorney who practices  either civil law or criminal                                                                    
     law or  a mixture and the  size of your firm.  We don't                                                                    
     know from the  bar poll unless you submit  a comment to                                                                    
     us identifying  the nature of  your practice,  we don't                                                                    
     know   that  you   practice  family   law.  It's   been                                                                    
     suggested,  from time  to time,  by attorneys  who say,                                                                    
     'We  don't know  much about  these applicants  and we'd                                                                    
     like  to fill  out more  surveys if  we only  know more                                                                    
     about them.  Why don't you  circulate resumes  of these                                                                    
     people  and we'll  weigh in  on their  experience.' The                                                                    
     reason that we don't do  that is that the criteria that                                                                    
     council members  maybe rely on  or that is  less useful                                                                    
     to them  than other criteria, might  be the suitability                                                                    
     of experience criteria on the  bar poll because council                                                                    
     members  have   abundant  information  to   assess  the                                                                    
     suitability of  applicants of  experience -  absent the                                                                    
     bar poll. And  so it would just  be soliciting opinions                                                                    
     of attorneys  who are less familiar  with the applicant                                                                    
     than  the  council members  themselves  were  we to  do                                                                    
     that.                                                                                                                      
                                                                                                                                
REPRESENTATIVE GRUENBERG  suggested having a section  in the poll                                                               
booklet that  would allow  a respondent to  explain, if  he wants                                                               
to, how he knows the applicant.                                                                                                 
                                                                                                                                
MR. COHN responded that the  council would be willing to consider                                                               
language that would invite comments.                                                                                            
                                                                                                                                
REPRESENTATIVE  GARA asked  if the  council would  be willing  to                                                               
consider adopting  specific written criteria  and if it  would be                                                               
willing to  suggest a  budget that  would provide  more effective                                                               
public notice  in the public  comment portion of the  process. He                                                               
also asked how the council could gather information on hiring                                                                   
executive level people.                                                                                                         
                                                                                                                                
     The  second  question -  it  seems  clear that  in  the                                                                    
     smaller communities where people  know that somebody is                                                                    
     applying for  a judgeship  - the  public might  be more                                                                    
     apt to show up to speak  out. We heard about the Kodiak                                                                    
     case earlier  today. The Kodiak opening  and the Kodiak                                                                    
     people  showed  up to  give  their  comments -  general                                                                    
     members  of  the public.  It  seems  that that  doesn't                                                                    
     happen that  much in a  larger city like  Anchorage. If                                                                    
     this group  of legislators wanted to  expand the amount                                                                    
     of  public  notice, could  you  give  to us,  maybe,  a                                                                    
     budget request  of what it  would take to  provide more                                                                    
     effective public notice - when  you're taking in public                                                                    
     comment on  a judicial  opening. Would  you be  able to                                                                    
     give us  some sort of  figure on a budget  proposal for                                                                    
     what it  costs and how  you would  do it if  that's the                                                                    
     direction we decided to go?                                                                                                
                                                                                                                                
     Those  are the  two  questions. Would  you  be able  to                                                                    
     provide us with  some sort of budget  request and craft                                                                    
     some  sort of  budget proposal  if the  others in  this                                                                    
     committee think that would be  a reasonable thing to do                                                                    
     for more  public notice?  The other  is, what  are your                                                                    
     thoughts  on how  you might  gather  the criteria  that                                                                    
     other people use to hire executive level people?                                                                           
                                                                                                                                
MR. COHN replied:                                                                                                               
                                                                                                                                
     Yes,  I'm quite  certain the  council members  would be                                                                    
     willing  to  consider  how  they  might  broaden  their                                                                    
     criteria if there are more  important criteria - things                                                                    
     that they're  not looking at  now. I think  the council                                                                    
     members would - I don't  want to speak for them because                                                                    
     they're here but I'm confident  that they would welcome                                                                    
     specific suggestions  and would be willing  to consider                                                                    
     other criteria  they might employ. And  with respect to                                                                    
     advertising our  public hearings more frequently  or in                                                                    
     some other  fashion, it  would be very  easy for  us to                                                                    
     work up  a budget request.  It is expensive, but  it is                                                                    
     well  worth  the  cost  if   the  result  is  a  higher                                                                    
     attendance and more public input -so, yes to both.                                                                         
                                                                                                                                
     Since  you  asked  about  public  input,  I  know  that                                                                    
     Representative McGuire asked this  morning about why we                                                                    
     don't  do  surveys  of peace  and  probation  officers,                                                                    
     social  workers,  guardians  ad  lidem,  jurors,  court                                                                    
     employees  such  as  we  do for  retention  and  get  a                                                                    
     broader  perspective. There  are a  couple of  reasons.                                                                    
     One  is that  a  very low  percentage  of those  people                                                                    
     would likely  have experience  with applicants  where a                                                                    
     good percentage  of those  groups have  experience with                                                                    
     judges, which is why we survey them.                                                                                       
                                                                                                                                
     And  the second  and  most compelling  reason maybe  is                                                                    
     just the cost - the  cost of doing the surveys. They're                                                                    
     expensive and  if we  were to weigh  how much  it would                                                                    
     cost to survey  the thousands of people  that we survey                                                                    
     for retention  - and  we probably  get more  input from                                                                    
     the  public  than  maybe  anywhere  in  the  world  for                                                                    
     retention.  If  we were  to  do  something similar  for                                                                    
     every  selection  process,  weighing that  against  the                                                                    
     beneficial  information we  might  gain  doing that,  I                                                                    
     think it wouldn't be a good use of our resources.                                                                          
                                                                                                                                
CO-CHAIR SEEKINS asked  if he had data on what  percentage of the                                                               
applicants  come  from  the  public  sector  versus  the  private                                                               
sector.                                                                                                                         
                                                                                                                                
MR. COHN replied yes.                                                                                                           
                                                                                                                                
MS. TERRY CARNES,  Senior Staff Associate, AJC,  offered that the                                                               
council  has a  sizeable database  on applicants  that goes  back                                                               
many years.  She recollected  that the  ratio between  public and                                                               
private is  about even. What kind  of people apply for  a vacancy                                                               
depends on its location.                                                                                                        
                                                                                                                                
MR.  COHN  added that  50  percent  of nominees  are  prosecuting                                                               
attorneys and 50 percent are defense attorneys.                                                                                 
                                                                                                                                
CO-CHAIR  SEEKINS asked  if  any  weight is  given  to the  years                                                               
attorney applicants spend in private practice.                                                                                  
                                                                                                                                
TAPE 04-75, SIDE A                                                                                                            
                                                                                                                              
MR. COHN replied  yes, many members consider that.  They are also                                                               
interested in  the administrative  aspects of running  a business                                                               
and time  management skills that  some people might  argue public                                                               
sector attorneys are less cognizant about.                                                                                      
                                                                                                                                
CO-CHAIR  SEEKINS asked  if he  is present  during the  interview                                                               
process.                                                                                                                        
                                                                                                                                
MR. COHN replied that he is.                                                                                                    
                                                                                                                                
CO-CHAIR  SEEKINS  asked if  people  are  questioned about  their                                                               
political  affiliation,  their   political  activities  or  their                                                               
political philosophy.                                                                                                           
                                                                                                                                
MR.  COHN replied  that  people are  absolutely  not asked  about                                                               
their  political  affiliations.  In three  years  of  interviews,                                                               
there  have  been  21  judicial  vacancies -  more  than  in  the                                                               
previous  10 years  - he  has  never heard  a political  question                                                               
asked  in an  interview.  However, applicants  have  to list  all                                                               
their outside activities on a  lengthy questionnaire - mostly for                                                               
conflict of interest issues. Some  applicants have been active in                                                               
politics. If  that's the case, they  might get a question  like -                                                               
"You've  been active  in  politics. If  you're  appointed to  the                                                               
bench,  would you  do anything  differently about  your political                                                               
activity?" -  because obviously, there are  judicial cannons that                                                               
preclude judges  from being involved  in political  activity, but                                                               
in terms  of asking  what someone's politics  are -  nothing like                                                               
that.                                                                                                                           
                                                                                                                                
In  the last  month or  so  he had  read in  the newspaper  about                                                               
council  members political  affiliations and  remarked, "I  think                                                               
it's a testament  to the process that I was  unaware of what that                                                               
was until I read it in the newspaper."                                                                                          
                                                                                                                                
CO-CHAIR SEEKINS asked  if he prepares many of  the questions for                                                               
the council members to ask in the interview process.                                                                            
                                                                                                                                
MR. COHN replied yes. He prepares  a couple of different lists of                                                               
general  interview questions  that apply  for the  superior court                                                               
vacancies,  one  for  the  district  court  vacancies,  etc.  The                                                               
council members  may choose  to ask any  of the  applicants these                                                               
questions, but scripted questions  would invite scripted answers,                                                               
which would be less meaningful. He  does not ask any questions in                                                               
the interview process, itself.                                                                                                  
                                                                                                                                
CO-CHAIR MCGUIRE  asked what his  personal reaction was  to Chief                                                               
Justice Bryner's letter and the  suggestions he made regarding an                                                               
evaluation  of the  bylaws and  the  fact that  they hadn't  been                                                               
reviewed for  20 years  and the potential  to insert  a provision                                                               
for regular review.                                                                                                             
                                                                                                                                
MR. COHN  replied that he  welcomed the suggestion; he  hoped the                                                               
council members followed through on that recommendation.                                                                        
                                                                                                                                
SENATOR FRENCH asked what the  process would be for reviewing and                                                               
changing the bylaws.                                                                                                            
                                                                                                                                
MR. COHN  replied since the  bylaws had not been  reviewed, there                                                               
wasn't a  process, but Chief Justice  Bryner's letter recommended                                                               
including input  from various branches of  government, the public                                                               
at large, applicants and judges.                                                                                                
                                                                                                                                
SENATOR FRENCH  asked if the  members of the AJC  are responsible                                                               
for promulgating their own bylaws.                                                                                              
                                                                                                                                
MR.  COHN replied  yes; the  constitution says  that the  council                                                               
will operate under rules that it enacts.                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG  noted  that the  AJC  has  independent                                                               
counsel.                                                                                                                        
                                                                                                                                
MR. COHN  replied that  the AJC has  a full-time  staff attorney,                                                               
Suzy Dosik, who is not associated with the Department of Law.                                                                   
                                                                                                                                
CO-CHAIR SEEKINS referenced a  letter the administration recently                                                               
sent to  the council  asking about information  it had  picked up                                                               
regarding two candidates in the recent selection process.                                                                       
                                                                                                                                
     The  response was  that this  was information  that had                                                                    
     already  been  considered by  the  council  - that  the                                                                    
     council  didn't want  to  review  that information  any                                                                    
     farther. Is that a  relatively accurate paraphrasing of                                                                    
     what went on?                                                                                                              
                                                                                                                                
MR. COHN replied yes.                                                                                                           
                                                                                                                                
     Mr. Clark  summoned me to  his office about a  week ago                                                                    
     or  whenever it  was and  asked me  if the  council had                                                                    
     known  information about  two  applicants. The  council                                                                    
     was  aware of  that  information -  both recently  when                                                                    
     these   applicants   applied   and   in   their   prior                                                                    
     application, which was  about a year and a  half to two                                                                    
     years   ago.   In   both  cases,   the   matters   were                                                                    
     investigated by staff. Council  members were advised of                                                                    
     the results of the  investigation of those matters. The                                                                    
     applicants  were asked  about  those  matters in  their                                                                    
     interviews. One  applicant was  asked about  the matter                                                                    
     both in the  interview this time and two  years ago and                                                                    
     the  other applicant  was asked  about  the matter  Mr.                                                                    
     Clark raised to  me in the previous  interview and less                                                                    
     directly this time around.                                                                                                 
                                                                                                                                
     I'm sort  of anxious to  mention that when I  talked to                                                                    
     Mr. Clark, I  asked him whether the  governor was aware                                                                    
     of that information  at the time he sent  the council a                                                                    
     letter rejecting all of the  council's nominees and Mr.                                                                    
     Clark  told  me  that  they  were  not  aware  of  that                                                                    
     information. So, that was not  the reason that they had                                                                    
     for rejecting  the nominees that were  forwarded to the                                                                    
     governor by the council.                                                                                                   
                                                                                                                                
CO-CHAIR SEEKINS  said he  was concerned  about the  procedure in                                                               
dealing with that kind of  information. He asked how exhaustively                                                               
the past history of an applicant is researched.                                                                                 
                                                                                                                                
MR. COHN  explained that  case files and  court tapes  are pulled                                                               
and,  if  appropriate, people  are  contacted.  If needed,  legal                                                               
research is done.  This has raised the issue of  what the council                                                               
should  do  if  it  became  aware of  new  information  after  it                                                               
submitted its nominations to the  governor. Right now there is no                                                               
set procedure.                                                                                                                  
                                                                                                                                
     It has almost never happened....  In Kenai last year it                                                                    
     did happen sort of.  The council nominated an applicant                                                                    
     and after  the applicant  was nominated, we  heard from                                                                    
     the governor's  office that there  had been  a petition                                                                    
     from people in that community  who were opposed to this                                                                    
     particular applicant.  Well, we  heard nothing  of that                                                                    
     sort  in advance  of the  nomination. We  had a  public                                                                    
     hearing, but  not one person  came forward  to denounce                                                                    
     that particular  applicant or raise  any of  the issues                                                                    
     that they  raised. I don't  even to this day  know what                                                                    
     they were in that petition.  That's the only instance I                                                                    
     can think of that something  came up after an applicant                                                                    
     had been nominated.                                                                                                        
                                                                                                                                
CO-CHAIR SEEKINS  asked if he or  his staff make any  official or                                                               
unofficial recommendations to the council about applicants.                                                                     
                                                                                                                                
MR. COHN replied no.                                                                                                            
                                                                                                                                
SENATOR THERRIAULT noted that the  bylaws currently say that once                                                               
the  selected  applicants  are submitted  to  the  governor,  new                                                               
information couldn't be considered.                                                                                             
                                                                                                                                
MR. COHN replied  yes that's true. That rule is  in place in case                                                               
a  governor  requested  more  names.   He  supported  creating  a                                                               
procedure for  the council  to reexamine  its nominations  if new                                                               
information came to light.                                                                                                      
                                                                                                                                
REPRESENTATIVE GARA said he didn't  think the council should have                                                               
to change  its rules to  deal with post-nomination  evidence, but                                                               
suggested if some bad information  comes out about a nominee, the                                                               
governor should hear it.                                                                                                        
                                                                                                                                
CO-CHAIR SEEKINS commented, "Kind of  a dangerous rule to protect                                                               
turf. Isn't it?"                                                                                                                
                                                                                                                                
MR. COHN  responded that he could  see the reason for  that rule,                                                               
because,   "Otherwise  there   would   be   a  constant   attempt                                                               
politically to get  the council to change its  position and there                                                               
is a need for finality."                                                                                                        
                                                                                                                                
REPRESENTATIVE GARA  followed up asking why  the Judicial Council                                                               
should  change  its  rules  to  deal  with  the  issue  of  post-                                                               
nomination evidence  when that evidence  will go to  the governor                                                               
who is making the selection process anyhow.                                                                                     
                                                                                                                                
CO-CHAIR SEEKINS said that issue would be discussed later.                                                                      
                                                                                                                                
CO-CHAIR  MCGUIRE  described  the judicial  selection  system  in                                                               
Russia where sometimes  the names are rejected and  new ones must                                                               
be put forward. So, it can be  done. She said our system is good,                                                               
but the one place for improvement is to have more public input.                                                                 
                                                                                                                                
     The  legislative   branch  is  representative   of  the                                                                    
     people;  the judicial  branch is  supposed  to be  more                                                                    
     neutral  and it  is supposed  to be  non-political, but                                                                    
     the fact  remains that we're  all human beings;  we all                                                                    
     read the  paper; we all  are a product of  the families                                                                    
     that we  grow up  in and around  the things  that we've                                                                    
     seen  and  through  that we  form  opinions  about  the                                                                    
     world. That's  okay. But, I  think that  it's important                                                                    
     that folks  here in our community  have the opportunity                                                                    
     to have  some input,  too. I  get very  concerned about                                                                    
     this small tiny pool of  people that come from the same                                                                    
     educational  background -  maybe you  could even  argue                                                                    
     that there  are more statistics  that come with  that -                                                                    
     being the  people that  end up  deciding the  makeup of                                                                    
     this entire branch  of government. I want  to hear from                                                                    
     you whether  that's a concern  that you share.  If it's                                                                    
     not, let me  know why and how do you  think that we can                                                                    
     make more members of the  public, more average members,                                                                    
     citizens of this state a bigger part of the process.                                                                       
                                                                                                                                
MR. COHN  agreed the  more public input  the better.  The council                                                               
has  always  solicited more  information  from  the public  about                                                               
judges  in the  retention  elections than  anywhere  else in  the                                                               
world. The  constitution has a  good balance in which  the public                                                               
has input  in more ways  than are completely obvious.  First, the                                                               
legislature, which  is elected, establishes minimal  criteria for                                                               
judges  - how  many and  where  - and  confirms the  non-attorney                                                               
members  of the  council. The  non-attorney members  have been  a                                                               
diverse  group of  people that  is fairly  representative of  the                                                               
public at large.                                                                                                                
                                                                                                                                
     In  the  selection process  itself,  we  have a  public                                                                    
     hearing, as you know, and  there may be ways to enhance                                                                    
     the attendance  at that. We also  invite public comment                                                                    
     through  our  website and  we  get  public comment  and                                                                    
     unsolicited  feedback from  the  public including  from                                                                    
     litigants  about applicants.  If  anyone  were to  have                                                                    
     suggestions  on   how  we  can   make  better   use  of                                                                    
     meaningful public feedback  on judicial applicants, I'm                                                                    
     sure the council would consider it.                                                                                        
                                                                                                                                
REPRESENTATIVE GARA  asked how public  hearings and  comments are                                                               
advertised.                                                                                                                     
                                                                                                                                
MR. COHN said  the public hearing is announced in  both the legal                                                               
and ad sections of the local  newspaper. It is also listed on its                                                               
website and on the statewide notice system.                                                                                     
                                                                                                                                
CO-CHAIR  SEEKINS announced  that  members of  the council  would                                                               
address the committee now.                                                                                                      
                                                                                                                                
MR.   BOB   GROSECLOSE,   testifying  via   teleconference   from                                                               
Fairbanks, said  he has  been an attorney  member of  the council                                                               
since April  2000. In the 20  years he practiced before  being on                                                               
the  council,  he   heard  criticism  of  the   way  the  council                                                               
occasionally approached things and why  the numbers of names were                                                               
limited in the way  they were. It meant a lot  to him, serving as                                                               
a council member, to be sure he  had a good foundation and a good                                                               
understanding  of the  legal framework  that creates  the council                                                               
and how  it goes about  its business.  He was satisfied  that the                                                               
council  selects the  best. He  used the  analogy of  a classroom                                                               
situation when he considers applicants  by saying he doesn't look                                                               
for the pass/no pass students; he looks for "A" students.                                                                       
                                                                                                                                
     What  we want  when  we're selecting  the  best in  the                                                                    
     state requires more care and  the rule I use for myself                                                                    
     - my background is in private  practice, so I do have a                                                                    
     bias - when  I look at applicants, I want  to know that                                                                    
     they  have an  appreciation for  the real  world as  it                                                                    
     impacts  litigants  in  the practice  of  law.  In  the                                                                    
     private practice of law that  means money - the cost of                                                                    
     hiring  an attorney  - the  cost of  waging litigation.                                                                    
     Those  are  real-world  considerations, but  there  are                                                                    
     also  the  other  factors  that  naturally  the  bylaws                                                                    
     emphasize   that  you've   heard  about   -  integrity,                                                                    
     temperament,  suitability, past  experience. From  that                                                                    
     approach and  as we thoroughly look  through...read the                                                                    
     comments,  read  the  material   -  the  interview,  of                                                                    
     course, is  a very key  part in  the way I  approach my                                                                    
     function,  because  I  want  to be  able  to  look  the                                                                    
     candidate in  the eye  and ask  him questions  and sort                                                                    
     through any misgivings I have.  But, when it's all over                                                                    
     and done  with, much  like the  teacher in  a classroom                                                                    
     assigning As,  Bs and Cs,  I'm looking for more  than a                                                                    
     no pass/pass.  I'm looking for  the A students.  Yes, I                                                                    
     do grade on  a curve, because that can  happen based on                                                                    
     the panel, based on the  location, based on the type of                                                                    
     judgeship that  we're dealing with  - to  where someone                                                                    
     may end up being getting an  A grade so to speak in one                                                                    
     setting  and not  in another.  But, if  I hold  true to                                                                    
     what  I view  as  my charge  and that  is  to give  the                                                                    
     governor  the best,  to give  the state  the best,  I'm                                                                    
     looking for  those that make  an A  grade or make  a B+                                                                    
     grade that  are up  there. I always  want and  I should                                                                    
     say my  final test for myself  is I don't want  to read                                                                    
     in the  newspaper a week  or two later of  the governor                                                                    
     making  an  appointment of  someone  that  I have  some                                                                    
     misgivings on. I don't want  to find myself pausing and                                                                    
     sighing, 'Oh,  gee, I'm  sorry he  made that  choice. I                                                                    
     wish  he'd picked  somebody -  one of  the other  names                                                                    
     that I've sent.' I want  to feel comfortable in knowing                                                                    
     that  any of  those folks  that  get passed  on to  the                                                                    
     governor are people that I'm  going to be able to stand                                                                    
     in front  of, proud whether  I'm in  a legal role  as a                                                                    
     lawyer or  whether I'm  there as  a litigant  myself. I                                                                    
     want to  know that the  judging in this state  is going                                                                    
     to be as  even a playing field as possible  and a place                                                                    
     of fairness and dignity....                                                                                                
                                                                                                                                
CO-CHAIR SEEKINS asked him how long he had been on the council.                                                                 
                                                                                                                                
MR. GROSECLOSE answered:                                                                                                        
                                                                                                                                
     I've  been on  for four  and  a half  years. I  started                                                                    
     April 2000. My  term will end February of  '06. I might                                                                    
     comment,  incidentally,  because people  often  wonder,                                                                    
     well,  can  you run  for  reelection  if you  aren't  a                                                                    
     lawyer. I think the answer  is technically yes. I don't                                                                    
     know many who ever have.  I'm a believer in term limits                                                                    
     in this capacity, because I  think this is a commitment                                                                    
     that  lawyers need  to make  to  their profession,  but                                                                    
     it's also  a commitment that's best  shared by allowing                                                                    
     fresh  blood and  new blood  and a  new perspective  to                                                                    
     come  about.  Six  years  is a  long  enough  stint  by                                                                    
     itself, I believe.                                                                                                         
                                                                                                                                
CO-CHAIR SEEKINS  asked if the  qualifications were  so stringent                                                               
they kept  qualified people from  applying and how he  felt about                                                               
the number of applicants.                                                                                                       
                                                                                                                                
MR. GROSECLOSE  said the turnout has  been healthy as long  as he                                                               
has  been  on the  council.  A  handout  that the  committee  has                                                               
provides a short summary of the past three years.                                                                               
                                                                                                                                
     With a few  notable exceptions, and the  one that comes                                                                    
     to my mind is a  Bethel selection process that unfolded                                                                    
     a few years back, we have  had a good healthy turn out.                                                                    
     There is no question that  the process as it now exists                                                                    
     is ego-bruising.  I'd tell anyone who  is interested in                                                                    
     applying  for  a judgeship  that  they  do have  to  go                                                                    
     through a number of hoops.  It isn't maybe one of their                                                                    
     first  liking...  One  question  I  often  ask  in  the                                                                    
     interview session  is how has  the process  treated you                                                                    
     and  do  you  have  any suggestions....  By  and  large                                                                    
     people are happy  with it.... I don't  believe that the                                                                    
     process as  it now  exists discourages  folks in  a way                                                                    
     that makes  me think  there is  some way  to fix  it or                                                                    
     make it different.                                                                                                         
                                                                                                                                
CO-CHAIR SEEKINS asked if the  council received some applications                                                               
from applicants who should not have applied.                                                                                    
                                                                                                                                
MR.  GROSECLOSE  answered   yes.  Fairly  frequently,  applicants                                                               
choose  to  withdraw  because  of the  bar  poll  results,  which                                                               
provide an initial indication to them of their chances.                                                                         
                                                                                                                                
MR. BILL  GORDON, the newest  public member  of the AJC,  said he                                                               
has been most  impressed by the people who have  come before him.                                                               
He said  he had the  pleasure of voting  for all four  people who                                                               
were before the  committee now. In looking at  the candidates, he                                                               
tries to  keep in mind that  he might have to  appear before them                                                               
some time.  They are people  who can  relate to other  people and                                                               
that  quality can't  be screened  through a  polling process.  He                                                               
uses the  bar poll to find  areas to probe that  don't make sense                                                               
to  him.  However, he  has  found  that  he  often has  the  same                                                               
impression  of the  applicants as  their  professional peers.  He                                                               
emphasized that  the council does  not choose judges,  but rather                                                               
forwards  the  names  of  all  who  are  most  qualified  from  a                                                               
particular  panel  to the  governor  who  then goes  through  his                                                               
selection process.                                                                                                              
                                                                                                                                
MR. GORDON  told members  that he was  an executive  assistant to                                                               
Governor  Hammond  when  the  state  was  rapidly  expanding  and                                                               
creating judges  right and left. A  large part of his  job was to                                                               
help the governor make his selection.                                                                                           
                                                                                                                                
     We were oftentimes in the  same situation that Governor                                                                    
     Murkowksi has  found himself -  frustrated by  the fact                                                                    
     that we  knew a very good  person that was a  very good                                                                    
     supporter that we knew had  good legal background, that                                                                    
     was  going to  apply  for this  judgeship  and we  were                                                                    
     shocked  when the  person didn't  make  it through  the                                                                    
     Judicial  Council.  The  truth  of the  matter  was  we                                                                    
     didn't  have   the  opportunity   to  know   the  other                                                                    
     candidates  and  we  didn't  have  the  opportunity  to                                                                    
     compare  our preferred  choice  with  those people  who                                                                    
     were brought to light that  we didn't know that may not                                                                    
     have  been supporters,  who may  not have  been of  the                                                                    
     same  political  persuasion  or whatnot.  The  Judicial                                                                    
     Council  filtered them  out; we  got  very good  people                                                                    
     from whom to  make selections - and I  think the system                                                                    
     worked.                                                                                                                    
                                                                                                                                
     Like the  Chief Justice said,  like a jury, we  get the                                                                    
     facts before  us; all  of us make  a judgment  based on                                                                    
     our  collective experiences  and  vote.  I would  never                                                                    
     second-guess how the other members  of the council have                                                                    
     voted. They have done an  outstanding job. I would have                                                                    
     probably voted  for a  few others -  more than  they do                                                                    
     because I  don't sometimes detect the  defining line as                                                                    
     clearly  as who  is  the most  qualified person  versus                                                                    
     very qualified,  but I do  think the process  works and                                                                    
     the governor  will always be confident  in this process                                                                    
     -  no matter  who the  governor selects,  we'll get  an                                                                    
     outstanding jurist.                                                                                                        
                                                                                                                                
CO-CHAIR  SEEKINS  asked how  much  data  about an  applicant  is                                                               
forwarded to the governor with the names.                                                                                       
                                                                                                                                
MR. GORDON replied  that the council shares all the  data that is                                                               
not confidential including the bar poll results.                                                                                
                                                                                                                                
     The  process  gets  a little  different  on  the  third                                                                    
     floor.  I  can't  speak to  this  experience,  but  the                                                                    
     experience  that  I had  -  at  that point  the  public                                                                    
     weighs in. I've  been very surprised in  my capacity as                                                                    
     a  member  of  the  Judicial  Council  that  I  haven't                                                                    
     received more public  input - my phone  ringing off the                                                                    
     hook. I'm very thankful that  it hasn't at times, but I                                                                    
     would  have suspected  that there  would be  more of  a                                                                    
     lobbying kind of  nature - which you call  input - call                                                                    
     it  lobbying  whatever  you  will -  it  has  the  same                                                                    
     effect.  The  governor will  get  that  heavily at  his                                                                    
     level, because  the community becomes involved  at that                                                                    
     point  and there's  a lot  of lobbying  going on.  They                                                                    
     also do  background police checks and  things like that                                                                    
     and some  information that we  may not have...  I think                                                                    
     the  governor  has  plenty   of  information  from  the                                                                    
     Judicial Council and from other courts.                                                                                    
                                                                                                                                
REPRESENTATIVE GARA asked if he  or Mr. Groseclose could think of                                                               
an  instance in  which someone  was  qualified but  was not  good                                                               
enough  to be  forwarded while  someone else  less qualified  was                                                               
forwarded. "What is the difference between those two levels?"                                                                   
                                                                                                                                
MR.  GORDON  replied yes;  sometimes  a  particular person  in  a                                                               
particular  location   has  unique  qualities  suited   for  that                                                               
location. He  might be  rated higher in  a rural  location rather                                                               
than  an urban  one; life  experiences come  into play.  Any area                                                               
like  Anchorage has  its own  problems. Anchorage  has a  heavier                                                               
case load and  might need someone who can manage  time better and                                                               
put out more work.                                                                                                              
                                                                                                                                
CO-CHAIR MCGUIRE asked  if he gave any weight  to racial, ethnic,                                                               
gender or regional diversity.                                                                                                   
                                                                                                                                
MR.  GORDON replied  absolutely  yes; the  council has  nominated                                                               
several  outstanding  women  even   though  they  have  not  been                                                               
successful at  the governor's level.  Ethnicity is a  real factor                                                               
depending  on the  vacancy  location, like  in  rural areas,  for                                                               
instance. "Out  of office skills,  their life experience  is very                                                               
important to the public members...."                                                                                            
                                                                                                                                
CO-CHAIR  MCGUIRE   asked  him  to  explain   the  importance  of                                                               
diversity on the bench.                                                                                                         
                                                                                                                                
MR. GROSECLOSE replied that the  judiciary "has to be color blind                                                               
to some  extent." He  noted that quotas  are not  tolerated under                                                               
existing  law,  but he  was  mindful  that the  judiciary  should                                                               
reflect the  population as  a whole. Each  vacancy is  limited by                                                               
how large  the applicant  pool is.  He has  not heard  anyone say                                                               
there must be x  number of types of judges. No  one has said they                                                               
need a certain  ratio of criminal lawyers or  public defenders or                                                               
women.                                                                                                                          
                                                                                                                                
TAPE 04-75, SIDE B                                                                                                            
                                                                                                                                
MR. GROSECLOSE said that different  kinds of qualities are needed                                                               
for different kinds of courts  in general. He elaborated that for                                                               
superior court the  members look for family  law exposure whereas                                                               
for  district  court  they  look  at  those  who  have  a  strong                                                               
background in criminal misdemeanor matters.                                                                                     
                                                                                                                                
     But is there a litmus test  that is employed in any and                                                                    
     all  situations? Do  we have  a  grid that  we kind  of                                                                    
     assign values to and factor  people in? No. I certainly                                                                    
     don't. But, are these factors  that I consider and that                                                                    
     get factored into the mix? Yes.                                                                                            
                                                                                                                                
CO-CHAIR MCGUIRE  noted that more  and more racial  and political                                                               
questions are analyzed in court.                                                                                                
                                                                                                                                
     If  you  only  have   one  segment  of  the  population                                                                    
     representing that  branch of  government, I  think it's                                                                    
     fair  to say  at  best there's  a  perception that  the                                                                    
     fairness  isn't there,  that the  understanding of  the                                                                    
     particular  plights   of  the  individuals,   that  the                                                                    
     diverse individuals that come  before the court are not                                                                    
     recognized. So,  I think it's important...  I just want                                                                    
     people  to  think about  it  who  are on  the  Judicial                                                                    
     Council.  We   try  very   carefully  to   isolate  the                                                                    
     judiciary from the political world  and yet, we realize                                                                    
     again,   human  beings   have  political   views.  What                                                                    
     underlies a political  opinion is values, philosophies,                                                                    
     upbringing and  religion and we  try to say  it doesn't                                                                    
     factor in  and yet, over  and over and over  again this                                                                    
     last two  weeks you only have  to look to the  paper to                                                                    
     see  the number  of  cases that  have  come before  the                                                                    
     supreme  court  that  are political  in  nature  -  100                                                                    
     percent political in nature.                                                                                               
                                                                                                                                
She  hoped  the  Judicial  Council   would  factor  in  different                                                               
political  philosophies   that  are  a  reflection   of  Alaska's                                                               
population as a whole.                                                                                                          
                                                                                                                                
     I would just  submit to you, whether  it is politically                                                                    
     appropriate  or  not,  whether  it  makes  people  feel                                                                    
     uncomfortable or  not, these  are the things  people in                                                                    
     Alaska are talking about and if  we don't want to go to                                                                    
     a system of  electing judges, which I  submit we don't,                                                                    
     we need to start being  more mindful and thinking about                                                                    
     a place  where it's appropriate for  different opinions                                                                    
     and philosophies to  be reflected in the  makeup of our                                                                    
     courts.                                                                                                                    
                                                                                                                                
REPRESENTATIVE OGG asked Mr. Gordon  to elaborate on the criteria                                                               
the council uses to choose applicants.                                                                                          
                                                                                                                                
MR. GORDON  replied that the criteria  are clear in the  bylaws -                                                               
professional   competence,   integrity,  fairness,   temperament,                                                               
suitability of  experience, etc.  Public members may  differ from                                                               
bar  members in  tending  to  look at  what  life experiences  an                                                               
applicant brings to  the bench that would  benefit the particular                                                               
community they  are in -  that might  separate them from  some of                                                               
the  other   equally  talented  in  the   areas  of  professional                                                               
competence, integrity, fairness, etc.                                                                                           
                                                                                                                                
REPRESENTATIVE  OGG  asked  if  the  council  generally  includes                                                               
racial,  ethnic,  cultural and  gender  diversity  as factors  in                                                               
defining a qualified from a most qualified applicant.                                                                           
                                                                                                                                
MR. GORDON  replied that it  would be impossible to  not consider                                                               
some of those  qualities. Most of the  applicants are exceptional                                                               
people. The areas  that are measured, that are  stated clearly in                                                               
the  bylaws and  the  bar poll,  are those  that  carry the  most                                                               
weight. But  some of the  other factors come in  when considering                                                               
different  vacancies. He  thought that  was why  the council  had                                                               
public members.                                                                                                                 
                                                                                                                                
MR. DOUG  BAILEY, newest attorney  member of AJC, said  he served                                                               
as acting executive  director of it under Chief  Justice Bony and                                                               
Chief  Justice Rabinowitz  in 1970  -  1974 and  has sat  through                                                               
several   council  matters,   several  nominating   meetings  and                                                               
interview sessions  with perspective  judges. He worked  with Mr.                                                               
Gordon in Governor Jay Hammond's  office where he saw the process                                                               
from  another perspective  at times.  He  voiced the  frustration                                                               
they both felt by not receiving the names they wanted.                                                                          
                                                                                                                                
He reflected that he is a  new vote on the council and emphasized                                                               
that the  membership of  the Judicial  Council changes  over time                                                               
and  he  personally  feels  no obligation  to  vote  for  someone                                                               
because the council, as  it was made up a year  or two ago, voted                                                               
to send a name up. He also  said that people think of the council                                                               
as a unit with  everybody in lock step, but it is  a group of six                                                               
people who  come together periodically to  bring different things                                                               
to it.                                                                                                                          
                                                                                                                                
MR.  BAILEY said  he personally  doesn't  put much  stock in  the                                                               
results of the  bar poll. It can be helpful,  however. If he sees                                                               
someone who  has been practicing  for 15 -  20 years with  a high                                                               
national rating, that gets his  attention as does someone who has                                                               
been practicing  for 25 years  and who  doesn't have a  rating in                                                               
Martindale Hubble, a national and foreign directory of lawyers.                                                                 
                                                                                                                                
REPRESENTATIVE GARA  asked him to explain  the difference between                                                               
an average and  an exceptional attorney and why would  he want an                                                               
exceptional one as a judge.                                                                                                     
                                                                                                                                
MR.  BAILEY  compared  it to  having  an  exceptionally  talented                                                               
doctor treating them  for a particular condition  rather than one                                                               
who is just average.                                                                                                            
                                                                                                                                
REPRESENTATIVE SAMUELS  asked if he  thought his expertise  as an                                                               
attorney  gives him  any advantage  over a  public member  of the                                                               
council.                                                                                                                        
                                                                                                                                
MR. BAILEY  declined to speak  for other members of  the council,                                                               
because they are very independent  in going about their business.                                                               
Non-attorney members  may address  other qualities  besides legal                                                               
skills  more  heavily than  he  would,  as Mr.  Gordon  discussed                                                               
earlier.                                                                                                                        
                                                                                                                                
CO-CHAIR SEEKINS  asked if  he saw individual  surveys or  just a                                                               
summary.                                                                                                                        
                                                                                                                                
MR. BAILEY  replied that the  members see  a summary and  some of                                                               
the comments. They  get all sorts of statistics on  the bar poll.                                                               
If  the written  comments  use the  same  words consistently,  he                                                               
might suspect organized opposition. He  personally calls a lot of                                                               
people and  gets a feel for  how a candidate is  viewed before he                                                               
ever sees the bar poll material.                                                                                                
                                                                                                                                
SENATOR  FRENCH asked  how  he and  Governor  Hammond dealt  with                                                               
their frustrations  when good candidates  were not  forwarded. He                                                               
thought at one time someone who  has the highest score on the bar                                                               
poll should  be given  an automatic pass,  although he  has since                                                               
changed his thinking.                                                                                                           
                                                                                                                                
     My  question for  you  is  back when  you  were in  the                                                                    
     administration  and  you  were  experiencing  the  same                                                                    
     frustration, what, if anything,  did you do in response                                                                    
     to that? Did you think  about tinkering with the system                                                                    
     and  if  you  thought  about tinkering,  what  did  you                                                                    
     decide and why did you decide that?                                                                                        
                                                                                                                                
MR. BAILEY replied  that he recommended to  Governor Hammond that                                                               
he write  to the Judicial  Council and  ask for more  names. That                                                               
idea didn't go  anywhere and to his knowledge  the governor never                                                               
did that.                                                                                                                       
                                                                                                                                
CO-CHAIR  SEEKINS asked  if he  was  aware of  any compromise  or                                                               
negotiation on the part of council members in that process.                                                                     
                                                                                                                                
MR. BAILEY replied that he wasn't,  but he could say that some of                                                               
the votes were not unanimous.                                                                                                   
                                                                                                                                
CO-CHAIR SEEKINS asked what he would  do if he didn't like any of                                                               
the applicants who were most qualified.                                                                                         
                                                                                                                                
MR. BAILEY replied  that he couldn't imagine it,  but supposed it                                                               
could happen.                                                                                                                   
                                                                                                                                
CO-CHAIR SEEKINS  asked what would  happen if the  council didn't                                                               
find anyone most qualified.                                                                                                     
                                                                                                                                
MR. BAILEY replied in that case  he might advance the argument to                                                               
reopen applications. "I just don't know."                                                                                       
                                                                                                                                
MR. COHN  said he was an  applicant at one time  when the council                                                               
nominated him  and no  one else.  At that  time, it  reopened the                                                               
process  for applications  over  a nine-month  period, which  was                                                               
tedious for  him. He knew of  one other occasion when  Bethel had                                                               
too few  applicants to find  two most qualified names  among them                                                               
to forward to the governor.                                                                                                     
                                                                                                                                
CO-CHAIR SEEKINS  welcomed Ms.  Gigi Pilcher  to the  meeting. He                                                               
asked her  how she felt  the process works  and if there  is room                                                               
for improvement.                                                                                                                
                                                                                                                                
MS. GIGI  PILCHER, public member  who has served for  five years,                                                               
said she  is not intimidated by  any of the attorney  members and                                                               
doesn't  put  a  lot  of  stock  in  the  bar  poll.  Aside  from                                                               
competence, she looks for applicants  who are humble and won't be                                                               
condescending;  she tries  to imagine  how a  person who  had not                                                               
been in  a courtroom  before would be  treated by  the applicant.                                                               
She said more public input would improve the process.                                                                           
                                                                                                                                
REPRESENTATIVE  SAMUELS asked  if special  interest groups,  like                                                               
AWAKE and STAR,  the rape crisis centers, try  to become involved                                                               
in the process.                                                                                                                 
                                                                                                                                
MS. PILCHER  replied that she has  been contacted only once  by a                                                               
group out  of Palmer in  her five-year  period of service  on the                                                               
council. She said she takes the bar poll with a grain of salt.                                                                  
                                                                                                                                
REPRESENTATIVE OGG asked if the  council members often go outside                                                               
of the  material that is  provided on applicants like  Mr. Bailey                                                               
said he does.                                                                                                                   
                                                                                                                                
MS.  PILCHER replied  that  she  doesn't do  that.  She lives  in                                                               
Ketchikan and  is removed from  the applicants  and a lot  of the                                                               
people who would know them.                                                                                                     
                                                                                                                                
     I like to  go in with a pretty clean  slate and go with                                                                    
     the material  that I've been provided  by the council's                                                                    
     staff  and I  put a  lot of  stock into  the interview.                                                                    
     There's  been some  candidates that,  I think,  were at                                                                    
     the top  of the bar poll  who, in my view,  came across                                                                    
     very dismal in the interview  and they may have been at                                                                    
     the top of the bar  poll, but they certainly didn't get                                                                    
     my vote  based on  the interview  and things  that came                                                                    
     out during the interview.                                                                                                  
                                                                                                                                
She said that  people can look great on paper.  She doesn't put a                                                               
lot of stock  in the bar poll comments, because  some of them are                                                               
hilarious and most are anonymous.                                                                                               
                                                                                                                                
     I  really do  go  on the  interview  process, which  is                                                                    
     pretty grueling  and really pretty tough.  I think I've                                                                    
     heard people  refer to it as  being cross-examined five                                                                    
     times.                                                                                                                     
                                                                                                                                
CO-CHAIR SEEKINS asked  how many nominees she  thinks the council                                                               
should advance to the governor.                                                                                                 
                                                                                                                                
MS. PILCHER replied that she has no preset number.                                                                              
                                                                                                                                
CO-CHAIR SEEKINS  thanked her  for her  comments and  invited Mr.                                                               
Katcher to testify on the last process he just went through.                                                                    
                                                                                                                                
MR.  JONATHAN  KATCHER,  Anchorage  attorney, said  he  has  been                                                               
practicing law in  Alaska for 23 years and  is president-elect of                                                               
the  Bar Association.  He thought  the  controversy that  started                                                               
when  the governor  sent his  letter of  rejection in  August has                                                               
been   positive.  It   has  resulted   in   people  reading   the                                                               
Constitution, the  minutes of  the Constitutional  Convention and                                                               
having spirited discussions about  the selection process. Another                                                               
positive result is  that the governor has become  more engaged in                                                               
the process  of selecting judges.  Prior to this  experience, the                                                               
attorney  general and  lieutenant governor  were responsible  for                                                               
interviewing the judicial candidates.  He didn't think having the                                                               
attorney general, who is the head  of the largest law firm in the                                                               
state and  under whose name every  pleading that is put  forth by                                                               
the  state in  front  of  every judge  is  signed, interview  the                                                               
judicial candidates is the way it should be done.                                                                               
                                                                                                                                
     But, be that as it  may, having the governor's chief of                                                                    
     staff  put  us  through  what  I  thought  was  a  very                                                                    
     thorough and  appropriate interview - and,  by the way,                                                                    
     a  more thorough  interview than  I  got when  I was  a                                                                    
     candidate  before   the  Knowles  administration   -  I                                                                    
     thought that was very positive  and he did an excellent                                                                    
     job of  questioning me over  topics that  anybody would                                                                    
     want  to know  before  they  would want  to  make me  a                                                                    
     judge. Then,  my interview with  the governor  was also                                                                    
     very constructive and very positive  - and, again, it's                                                                    
     my   understanding   that    the   governor   in   this                                                                    
     administration previously had  never interviewed any of                                                                    
     the candidates that he appointed  to be a member of the                                                                    
     court.  It's  my   hope  that  as  a   result  of  this                                                                    
     controversy  this  will be  a  new  approach that  this                                                                    
     administration  will  use  for purposes  of  appointing                                                                    
     judges.                                                                                                                    
                                                                                                                                
     What these  judges do,  and particularly  the judgeship                                                                    
     that I have been twice  an applicant and candidate for,                                                                    
     is  a very  tough job.  These people  in Anchorage  - I                                                                    
     don't  know much  about  the  jurisdictions outside  of                                                                    
     Anchorage  - so  I  can only  speak  for Anchorage  and                                                                    
     about the job  I was trying to get -  they have a very,                                                                    
     very  tough job.  They are  divided into  two kinds  of                                                                    
     caseloads on the superior court.  You have those who do                                                                    
     exclusively criminal work - hard,  hard work - and then                                                                    
     you have  those who do  civil work, which is  a mixture                                                                    
     of family  law and car accidents  and contract disputes                                                                    
     and complicated regulatory matters.  This is tough work                                                                    
     and we only want the  very best people doing that work.                                                                    
     We don't  want people who  are not quite the  very best                                                                    
     doing that work.                                                                                                           
                                                                                                                                
     I represent clients  who have a vast  array of problems                                                                    
     and issues  that I  bring to  the court  and I  want to                                                                    
     make sure  that my  clients are going  to get  the best                                                                    
     justice  possible from  the most  competent people.  An                                                                    
     example  of how  difficult  the job  that these  people                                                                    
     confront when  they are  on superior  court is  what we                                                                    
     read  about  in the  paper  today  from Judge  [Morgan]                                                                    
     Christen.  Judge   Christen  had  to  deal   with  this                                                                    
     question  whether  the  ballot  measure  regarding  the                                                                    
     election, the replacement of  the United States senator                                                                    
     had  the  right  language.   This  is  a  sophisticated                                                                    
     constitutional  and statutory  question and  that judge                                                                    
     had to, in the midst of  doing all the divorces and car                                                                    
     wrecks and  all the other  kinds of stuff that  she has                                                                    
     to do,  make way in  her life to  deal with, on  a very                                                                    
     short fuse,  a very sophisticated and  difficult issue.                                                                    
     And whether or  not we agree with the  outcome that she                                                                    
     reached, we  had to  recognize that in  order to  do it                                                                    
     well, you  have to be  really good. Being good  is more                                                                    
     than  smart. Being  good means  that you  have to  work                                                                    
     very,  very   hard  and  manage  and   balance  a  very                                                                    
     difficult caseload. In  my view, we want  only the most                                                                    
     qualified people to be doing that.                                                                                         
                                                                                                                                
     The  question then  becomes who  decides.  As in  every                                                                    
     constitutional issue,  it basically  comes down  to who                                                                    
     makes the call.  If it's in federalism,  does the state                                                                    
     have the power or does  the federal government have the                                                                    
     power.  If it's  in privacy,  does the  individual have                                                                    
     the power  or does the  government have the  power. And                                                                    
     in this  case, in selecting judges,  the constitutional                                                                    
     drafters in this state decided  that two entities would                                                                    
     have  the  power  and,  in my  view,  wisely  so.  They                                                                    
     divided it up  so that we would have a  group of people                                                                    
     making the  decision based upon criteria  that made the                                                                    
     most sense.  If you  read the  minutes, which  I gather                                                                    
     everybody has, that criteria was to be most qualified.                                                                     
                                                                                                                                
     Now,  one of  the  things that  I  think is  remarkable                                                                    
     about being  a lawyer in  Alaska, a citizen  in Alaska,                                                                    
     is that we  have, right now, in this  room, people that                                                                    
     were there  - people  that were  part of  creating this                                                                    
     constitutional system  of ours. And, I  think they have                                                                    
     done a  wonderful job;  our constitution  is a  model -                                                                    
     not only  in terms of  judicial selection, but  the way                                                                    
     that  our government  is created  and  structured is  a                                                                    
     model for governments around the  world. So, given that                                                                    
     some of  those people are  still here, it's  like being                                                                    
     in the room  with Jefferson and Madison.  Being able to                                                                    
     be  in  the  presence  of  Judge  Buckaloo  or  in  the                                                                    
     presence of  Vic Fischer  or in  the presence  of Judge                                                                    
     Stewart,  I  think   is  just  a  great   honor  and  a                                                                    
     privilege.  These people  served  us very  well by  the                                                                    
     system that they created.                                                                                                  
                                                                                                                                
     I  want   to  close   by  addressing  one   point  that                                                                    
     Representative McGuire  brought up.  This is  the issue                                                                    
     of do we want to  have people scrutinized or questioned                                                                    
     on  their political  philosophy.  While  I really  have                                                                    
     serious issues with  it, ours is a society  of laws and                                                                    
     not men  and women. We  want these judges  making these                                                                    
     calls based  upon the  law. We  want them  to interpret                                                                    
     the  law  as   it  is  passed  down  to   them  by  the                                                                    
     legislature and by the supreme  court because these are                                                                    
     the  two  principle  creators of  law  outside  of  the                                                                    
     constitution and  we want these people  making the call                                                                    
     correctly as the law informs them  to do so - not based                                                                    
     upon their  own individual  philosophy, not  based upon                                                                    
     their  own  individual  religion,   but  what  the  law                                                                    
     compels.                                                                                                                   
                                                                                                                                
CO-CHAIR MCGUIRE said  she wished that could be true  and she has                                                               
always wanted  the judiciary to  be politically neutral  and that                                                               
is a goal they should continue  to strive for. The make-up of the                                                               
judicial bench should also have  diversity. She is not suggesting                                                               
a box that would read Republican or Democrat.                                                                                   
                                                                                                                                
     What I was really trying to  get at is that a political                                                                    
     party is more  than just an association with  a name or                                                                    
     group;  it   is  a   set  of  values   and  a   set  of                                                                    
     philosophies, a  way of  viewing the  world -  and that                                                                    
     there  are philosophies  and values  that differ  among                                                                    
     Alaskans.  As you  well know,  you can  pick any  case,                                                                    
     whether  it's on  abortion, whether  it's on  the death                                                                    
     penalty,  whether  it's on  a  ballot  measure -  these                                                                    
     issues  have  two  different  sides  and  both  can  be                                                                    
     argued. Any  skilled lawyer can see  the arguments that                                                                    
     they would make for both  sides; that's part of a legal                                                                    
     education and  part of being a  balanced and reasonable                                                                    
     person - that you can see  both sides. But, in the end,                                                                    
     only one  side can  win and  my point  is simply  not a                                                                    
     suggestion that  we move to  politicizing our  bench or                                                                    
     anything that way - but  that we ought to consider that                                                                    
     the  makeup  of  the  judicial branch  ought  to  be  a                                                                    
     reflection of  the diversity that  we have. I  do think                                                                    
     that there  ought to be  women and men and  there ought                                                                    
     to be  people of  color and people  from Bethel  on the                                                                    
     Anchorage bench, sometime, or  people from Anchorage on                                                                    
     the  Bethel  bench. I  think  those  are great  things.                                                                    
     There  ought  to  be  people on  the  bench  that  have                                                                    
     different  political and  social philosophies  as well.                                                                    
     That was my point.                                                                                                         
                                                                                                                                
MR. KATCHER responded, "There are; there are people of different                                                                
philosophies on the bench that bring different politics...."                                                                    
                                                                                                                                
CO-CHAIR SEEKINS said they are not discussing the philosophy of                                                                 
the state of Alaska today.                                                                                                      
                                                                                                                                
     I want to know about  your experience going through the                                                                    
     process  this time  around. Was  it rosy?  You wouldn't                                                                    
     change a thing?  Do you think that it was  fair? Do you                                                                    
     think  it   was  transparent?  Do  you   think  it  was                                                                    
     consistent? You  just went through  it. I want  to know                                                                    
     what you think  is the best system in the  world or the                                                                    
     model, but what was your experience?                                                                                       
                                                                                                                                
MR. KATCHER replied:                                                                                                            
                                                                                                                                
     I would say  yes, yes, yes, yes and  yes. My experience                                                                    
     was  positive.  I found  that  the  council members  in                                                                    
     their scrutiny of myself was  engaged, was informed and                                                                    
     that,  as far  as I  could  tell, knew  what they  were                                                                    
     talking  about when  they interviewed  me and  asked me                                                                    
     about things that they would  want to know for purposes                                                                    
     of  deciding whether  or not  I was  qualified to  be a                                                                    
     superior court judge.                                                                                                      
                                                                                                                                
CO-CHAIR SEEKINS asked him:                                                                                                     
                                                                                                                                
     The altercation that  you had with the  state of Alaska                                                                    
     that came  to light, probably  to most of us  after the                                                                    
     fact, was  it something  that was considered,  that you                                                                    
     were  asked  about?  Did you  have  an  opportunity  to                                                                    
     explain the process that you went through?                                                                                 
                                                                                                                                
MR. KATCHER quickly replied, "Yes."                                                                                             
                                                                                                                                
CO-CHAIR SEEKINS  continued, "They were obviously  satisfied that                                                               
it was not  something that would keep you from  being the best of                                                               
the best in the selection process? Is that correct?"                                                                            
                                                                                                                                
MR. KATCHER answered:                                                                                                           
                                                                                                                                
     Well, I'd  assume that since they  unanimously voted in                                                                    
     my favor,  that was their  conclusion, but I  guess you                                                                    
     would have to ask them  particularly about why they had                                                                    
     those votes.                                                                                                               
                                                                                                                                
He  said it  was the  subject of  a considerable  portion of  his                                                               
interview.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  SAMUELS   said  he  has  been   the  conservative                                                               
attorney receptacle for input since this meeting started.                                                                       
                                                                                                                                
     There is a  viewpoint that does lean left  and it's not                                                                    
     about  Democrat  or  Republican. Who  cares  what  your                                                                    
     party name is. It's more the philosophy....                                                                                
                                                                                                                                
MR.  KATCHER responded,  "I think  that is  fundamentally a  myth                                                               
that there  is a liberal  viewpoint manifested in the  members of                                                               
the judiciary of this state."                                                                                                   
                                                                                                                                
REPRESENTATIVE OGG  asked if he  was asked any questions  that he                                                               
didn't expect in his interview.                                                                                                 
                                                                                                                                
TAPE 04-76, SIDE A                                                                                                            
                                                                                                                              
MR. KATCHER  replied that he  understands the question  that most                                                               
applicants who  don't do well flub  is the question -  why do you                                                               
want to be a judge.                                                                                                             
                                                                                                                                
     I was  ready for that one.  But, I do want  to tell you                                                                    
     in  the  interview I  had  with  Mr. Clark,  which  was                                                                    
     really  just a  great time.  I really  enjoyed my  hour                                                                    
     with Jim  Clark. He's a  brilliant lawyer and it  was a                                                                    
     real  pleasure to  spend time  with  him. The  question                                                                    
     that  I  wasn't  ready  for that  I  thought  was  very                                                                    
     interesting  is he  said  that, well,  tell  me why  we                                                                    
     should appoint these  other two people to  the bench. I                                                                    
     thought that  that was  a really  sharp question  and I                                                                    
     went  on  to  say  I think  they'd  both  be  excellent                                                                    
     judges. I  think, frankly, these  other two  members of                                                                    
     the bar who  are here to speak to you  today who didn't                                                                    
     get  passed by  the  council,  in my  view  - I've  had                                                                    
     direct  experience with  both of  them -  I think  they                                                                    
     would both be excellent judges.  But again, I don't get                                                                    
     the call. The council gets  the call; that's the way it                                                                    
     works.                                                                                                                     
                                                                                                                                
SENATOR FRENCH wanted to briefly  address the myth about the left                                                               
or right slant to the judiciary.                                                                                                
                                                                                                                                
     I should probably put on  the record that the house I'm                                                                    
     living in right now I  bought from Mr. Katcher about 12                                                                    
     months ago.  The house  worked out  great. As  a former                                                                    
     prosecutor,  I   was  from  time  to   time  completely                                                                    
     convinced  that the  bench was  arrayed  against me.  I                                                                    
     just  couldn't win;  it was  not fair.  You kind  of go                                                                    
     back  and kibitz  the way  you  do in  the locker  room                                                                    
     after work about  what's going on over  there in court.                                                                    
     And one day we  just sort of set out to  find out - how                                                                    
     many defense attorneys and  how many former prosecutors                                                                    
     were on  the bench and  as it  turned out, just  as Mr.                                                                    
     Cohn  let us  know earlier  today, it  was 50/50.  It's                                                                    
     right  down the  middle.  So, I  think  to anybody  who                                                                    
     suggests  that  there is  some  sort  of slant  to  the                                                                    
     bench, you just can't bear  it out with any statistics.                                                                    
     If you  just stop and  look at  it in a  cold-eyed way,                                                                    
     the evidence is just not  there to support that there's                                                                    
     any kind  of slant to the  bench. It may not  always go                                                                    
     your way, but that's just the way the system works.                                                                        
                                                                                                                                
REPRESENTATIVE GARA weighed in that  he knew one judge who shares                                                               
something close to his political  beliefs and only twice has that                                                               
judge ever issued a ruling that he agrees with.                                                                                 
                                                                                                                                
     He rules the  opposite way from me almost  all the time                                                                    
     - often on  my cases when I was  practicing. This whole                                                                    
     idea that people are  voting their political philosophy                                                                    
     just doesn't carry water. It  never has, at least, when                                                                    
     I have practiced.                                                                                                          
                                                                                                                                
CO-CHAIR SEEKINS announced that  Sydney Billingslea would testify                                                               
next.                                                                                                                           
                                                                                                                                
MS. SIDNEY  BILLINGSLEA, Alaska Trial Lawyer's  Association, said                                                               
she would  answer questions. She  had three experiences  with the                                                               
Judicial Council - twice when  her name was forwarded to Governor                                                               
Knowles,  but she  didn't  get one  of the  two  seats that  were                                                               
available, and once  in this last round when  she was interviewed                                                               
by the governor and Mr. Clark and did not get the job.                                                                          
                                                                                                                                
     My  experience has  [indisc.]  universally been  tiring                                                                    
     and   thorough   and   penetrating.  They   have   been                                                                    
     disruptive  of my  practice to  some degree,  because I                                                                    
     choose to structure - I'm  a sole practitioner and I've                                                                    
     been a  sole practitioner for 10  years - I run  my own                                                                    
     business. When I engaged in  the months-long process of                                                                    
     selection, there  are times when I  get [indisc.] where                                                                    
     I choose  to be careful  about the cases that  I commit                                                                    
     to because  I may  have to  abandon them  if I  get the                                                                    
     appointment. So, to that extent  it has been a somewhat                                                                    
     disruptive   process,  but   one  that   I  engage   in                                                                    
     voluntarily and I'm  not sure how I  could improve upon                                                                    
     [indisc.]  since  it  takes  several  months  once  the                                                                    
     application  goes in  to  the time  you  meet with  the                                                                    
     Judicial Council  and then  45 days  after that  to get                                                                    
     the  [indisc.]. So,  I  don't know  how  to improve  on                                                                    
     that. [Indisc.]                                                                                                            
                                                                                                                                
     I would  echo what  Mr. Katcher said  about the  way it                                                                    
     operates. [indisc.] I  think I earned my  numbers and I                                                                    
     earned  my EV  rating,  demonstrating that  I'm a  very                                                                    
     qualified attorney,  I'm a well-known attorney  to some                                                                    
     degree.  I get  a  lot  of responses  on  the bar  poll                                                                    
     probably  because  I  go  to court  all  the  time  and                                                                    
     because I meet a lot of  people in my volunteer work as                                                                    
     a trial lawyer and my  volunteer work as being a member                                                                    
     of  the  Board of  Governors  -  I'm a  relatively  new                                                                    
     member of the  Board of Governors. So, I  feel like the                                                                    
     more  well-known one  is, the  better shot  one has  of                                                                    
     getting bigger  numbers on  the polls,  not necessarily                                                                    
     better  numbers. So,  I  think that  I  earned my  good                                                                    
     numbers. There  are some well-known lawyers  that don't                                                                    
     do so well and that means something as well.                                                                               
                                                                                                                                
SENATOR FRENCH  asked how  a person could  be the  most qualified                                                               
applicant one year and not the next.                                                                                            
                                                                                                                                
MS. BILLINGSLEA answered  that the membership of  the AJC changes                                                               
and,  therefore, so  does its  opinions. The  pool of  candidates                                                               
also changes  as do the regions  in which the positions  open up.                                                               
Of the three  people whose names were forwarded she  said the one                                                               
who was chosen was at least as good  a lawyer as she is. She does                                                               
not know what criteria the governor used to select him because                                                                  
it's not particularly transparent.                                                                                              
                                                                                                                                
     If it  were just a  deeper list, if just  everybody who                                                                    
     has practiced  law for  five years  qualified to  be on                                                                    
     the superior court went up  and somebody that I thought                                                                    
     wasn't as good  a lawyer as I am or  who wouldn't be as                                                                    
     good a judge  as I am got selected, I  think I would be                                                                    
     less pleased with  the way the process  worked. I think                                                                    
     I would  be less  honored to  be in  the group,  if you                                                                    
     will....  I was  honored to  be in  this group  and I'm                                                                    
     happy  with  the  person that  the  governor  selected,                                                                    
     because I can see that he's among the most qualified.                                                                      
                                                                                                                                
REPRESENTATIVE SAMUELS said:                                                                                                    
                                                                                                                                
     I'm  less  concerned  about...if a  stronger  group  of                                                                    
     candidates  is up  and  you don't  make  the cut,  then                                                                    
     that's  fine.  Do  you  find  that  maybe  more  as  an                                                                    
     attorney than  a candidate, do  you find that  bar poll                                                                    
     differentials for  different jobs - that  still kind of                                                                    
     troubles me  - that if  you apply for a  superior court                                                                    
     job in Fairbanks  and you applied for  a superior court                                                                    
     job within  a year in  Anchorage - the same  peer group                                                                    
     is  judging you  - that  the numbers  should really  be                                                                    
     identical?  I  can understand  if  somebody  had a  bad                                                                    
     experience or  a better experience, it  might fluctuate                                                                    
     slightly, but are you troubled at  all - if that has in                                                                    
     fact happened... that the bar  polls fluctuate with the                                                                    
     same  user  group  that  is   actually  voting  on  the                                                                    
     candidate. Do you see that as a problem, at all?                                                                           
                                                                                                                                
MS. BILLINGSLEA replied that she didn't see it as a problem. If                                                                 
that is true, the councils might vote a different number of                                                                     
suitability, for example.                                                                                                       
                                                                                                                                
     The other numbers should be  consistent. One can assume                                                                    
     that the  bar poll numbers  would be roughly  the same.                                                                    
     But then  you get  to the  Judicial Council  where some                                                                    
     subjectivity  enters  in  about  suitability  for  that                                                                    
     particular  position  -  and maybe  I'm  not  the  best                                                                    
     candidate  or among  the most  qualified when  I go  to                                                                    
     Fairbanks....                                                                                                              
                                                                                                                                
CO-CHAIR SEEKINS said questions were  raised about several of her                                                               
cases in which  she indicated she had  not adequately represented                                                               
her  clients in  one capacity  or another.  He asked  if she  had                                                               
discussions about that with the Judicial Council and was that                                                                   
part of its consideration.                                                                                                      
                                                                                                                                
MS. BILLINGSLEA replied:                                                                                                        
                                                                                                                                
     Absolutely - it was two years  ago in 2002. I know what                                                                    
     you  are   talking  about.  It  was   quite  thoroughly                                                                    
     discussed in 2002, but was  not addressed in 2004. That                                                                    
     would probably be pretty redundant  to do it twice, but                                                                    
     Mr. Clark was very thorough  in his questions about the                                                                    
     two ineffective claims that I  filed affidavits for and                                                                    
     then I  think you  have the  Sky case  in front  of you                                                                    
     from  Sitka, which  is not  in  post conviction  relief                                                                    
     status at this  point. I think it's up  on appeal right                                                                    
     now.... To  that end, I  will say that my  meeting with                                                                    
     Mr.  Clark   was  very  thorough.  He   was  very  well                                                                    
     prepared;  it was  absolutely  enjoyable  to meet  with                                                                    
     somebody who is as complete  a professional as he is. I                                                                    
     would  expect   nothing  less.  My  meeting   with  the                                                                    
     governor was similarly enjoyable.                                                                                          
                                                                                                                                
     I  have   feedback  from  other  applicants   who  were                                                                    
     unsuccessful  in  prior  judicial  openings  and  their                                                                    
     experience  was  much  less positive.  They  found  the                                                                    
     attorney   general  not   particularly  prepared,   not                                                                    
     particularly thorough  and not particularly  engaged in                                                                    
     the  selection  process. So  to  the  extent that  this                                                                    
     experience has opened up the  pathway to the governor's                                                                    
     office, I  think that is wonderful.  It's critical that                                                                    
     the  governor be  engaged in  the  individuals that  he                                                                    
     selects  for the  bench now  and in  the future.  I was                                                                    
     very  surprised  to  find  out   the  governor  was  so                                                                    
     disengaged from  the process in  the past  eight judges                                                                    
     he has selected  for the state. So, to  the extent that                                                                    
     he is  now engaged and  he actually picked  Mr. Stowers                                                                    
     for the  bench, I congratulate  him in the  process for                                                                    
     making that happen.                                                                                                        
                                                                                                                                
CO-CHAIR SEEKINS said he understands that it's not unusual for                                                                  
any of the governors in the past to be relatively disengaged in                                                                 
the process.                                                                                                                    
                                                                                                                                
MS. BILLINGSLEA replied:                                                                                                        
                                                                                                                                
     That would  be a surprise  to me. Governor  Knowles was                                                                    
     pretty engaged.  That was my  experience and  I haven't                                                                    
     applied for  a judgeship before Governor  Knowles' term                                                                    
      - but that would be surprising to me. I hope that it                                                                      
     changes if that is correct.                                                                                                
                                                                                                                                
SENATOR  THERRIAULT   asked  her   to  explain   her  ineffective                                                               
assistance of  counsel affidavits  and why  the council  set them                                                               
aside.                                                                                                                          
                                                                                                                                
MS. BILLINGSLEA  explained that criminal defense  attorneys, like                                                               
herself, sometimes lose  a serious case and their  client goes to                                                               
prison for a long time.  Those individuals are very unhappy about                                                               
that fact  and engage in  what is called  post-conviction relief.                                                               
It  is fairly  common in  the business  for those  individuals to                                                               
file a Rule 35, an  ineffective assistance of counsel case. These                                                               
cases   make  their   way  through   court   and  generally   are                                                               
unsuccessful because  the threshold  for effective  assistance of                                                               
counsel is  very low  - in  part because  the people  did receive                                                               
very good  assistance of  council in the  cases they  are talking                                                               
about. She  personally holds  herself to  a higher  standard than                                                               
the  constitutional  standard  because  it is  an  extremely  low                                                               
threshold.                                                                                                                      
                                                                                                                                
MS.  BILLINGSLEA  said   she  looked  at  the   two  cases  under                                                               
discussion and agreed that she  made a tactical mistake involving                                                               
jury instructions that  may or may not have  affected the outcome                                                               
of the trial.  She didn't know. The focus of  the questioning was                                                               
whether it was tactical at the  time of the trial and she thought                                                               
the answer was probably yes. In  hindsight, it was probably not a                                                               
good choice and  she wishes she hadn't done it  that way, but she                                                               
is willing to  admit her mistakes. That is  probably critical for                                                               
any superior  or district  court judge  to do  as well,  which is                                                               
probably why  it was not a  factor in finding her  among the most                                                               
qualified lawyers.                                                                                                              
                                                                                                                                
SENATOR THERRIAULT said  she was just giving  someone the benefit                                                               
of a doubt and wishes the press would have reported it that way.                                                                
                                                                                                                                
MS. BILLINGSLEA  responded that  she didn't  think the  public is                                                               
engaged on that level.                                                                                                          
                                                                                                                                
REPRESENTATIVE  GARA  asked how  many  trials  she had  done  and                                                               
whether  anyone  else  who  had  done  the  same  number  had  an                                                               
ineffective assistance affidavit filed.                                                                                         
                                                                                                                                
MS.  BILLINGSLEA answered  that  she  used to  do  three to  five                                                               
trials per year and now she does  one to three per year. They are                                                               
generally serious  felonies. She knows that  public defenders and                                                               
public  servants are  targets for  post-conviction relief  cases.                                                               
She  guessed  that  they  got a  lot  of  ineffective  assistance                                                               
affidavits  filed  against them  because  they  defend murder  or                                                               
serious assault cases. That is what  she saw as a public defender                                                               
10 years ago.                                                                                                                   
                                                                                                                                
     It  comes   in  waves,  sometimes  where   there  is  a                                                                    
     particularly litigious  person who is  incarcerated who                                                                    
     is the  jailhouse lawyer. So,  all of a sudden  it goes                                                                    
     around and you  get dozens of them filed in  a wave and                                                                    
     then sometimes it quiets down.                                                                                             
                                                                                                                                
REPRESENTATIVE  GARA asked  her  what her  criminal caseload  was                                                               
when she was in public practice.                                                                                                
                                                                                                                                
MS.  BILLINGSLEA  replied as  a  state  public defender  she  had                                                               
between 100 to 175 cases. Now she has about 20.                                                                                 
                                                                                                                                
MR. SCOTT  NORDSTRAND, Deputy  Attorney General,  Civil Division,                                                               
Department  of  Law (DOL),  said  he  was appointed  by  Attorney                                                               
General  Renkes  in  January  2003  after  15  years  of  private                                                               
practice. He supervises the civil  legal matters for the state of                                                               
Alaska  with  a  staff  of  approximately  135  attorneys  in  10                                                               
sections.   He has a  management team of  about 10 people  with a                                                               
statewide  office chief.  He  is a  three-time  candidate for  an                                                               
Alaska superior court judgeship in  Anchorage and the council did                                                               
not forward  his name to the  governor for any of  the vacancies.                                                               
He  divided his  comments into  the  bar poll  and what  happened                                                               
there, the interview and what  happened and the conversation with                                                               
AJC  Executive Director  Larry Cohn  regarding  the outcome.  His                                                               
views are his own, not the administration's.                                                                                    
                                                                                                                                
He first  applied in October 2001  and, after the bar  poll, five                                                               
out  of  eight  attorneys  continued  in  the  running.  The  AJC                                                               
provides formal bar  poll information to all  applicants prior to                                                               
the results becoming public. Those  candidates with poor showings                                                               
in the  poll are given  the opportunity  to withdraw so  that the                                                               
results   will  not   become  public.   Of  the   five  remaining                                                               
candidates,  his  overall  rating   from  attorneys  with  direct                                                               
professional  experience with  him was  3.7 out  of a  possible 5                                                               
points - about  the middle of the pack. His  overall rating among                                                               
judges  was 3.8.  He provided  a chart  summarizing his  bar poll                                                               
ratings to the committee.                                                                                                       
                                                                                                                                
During his  interview with  the AJC, which  was held  in private,                                                               
although he was asked  if he wanted to hold it  in public, it was                                                               
clear that  a public  interview was  not the  norm or  the method                                                               
preferred. He was  given the opportunity by the  Chief Justice to                                                               
make an  opening presentation on  why he  believed he would  be a                                                               
superior  court judge.  Each of  the council  members took  turns                                                               
asking  him questions.  The questions  were not  standardized but                                                               
seemed specific  to him.  They included  questions about  the bar                                                               
poll,  which  were  generally positive,  questions  about  a  few                                                               
negative  written  comments  from  the  bar  poll,  and  positive                                                               
comments were discussed, too.                                                                                                   
                                                                                                                                
     The council's questioning focused  on the breadth of my                                                                    
     legal  experience, particularly  the  lack of  criminal                                                                    
     and  family law  background.  It was  suggested that  I                                                                    
     consider continuing  legal education  of pro  bono work                                                                    
     to  broaden  my  legal experience.  Other  professional                                                                    
     questions  concerned my  trial  and appellate  advocacy                                                                    
     experience and  my writing  sample. The  council seemed                                                                    
     to  like  my  new  supreme   court  brief  that  I  had                                                                    
     submitted. I was  asked about my hobbies and  I was, in                                                                    
     fact,  asked about  my political  activities... All  in                                                                    
     all,  the interview  was positive...and  I left  with a                                                                    
     sense that I had done quite well.                                                                                          
                                                                                                                                
     Then comes  the call.  Larry Cohn  called me  after the                                                                    
     council voted  on the  applicants. He  told me  that my                                                                    
     name would not be  forwarded to the governor. According                                                                    
     to  Cohn,  the  council  was  very  impressed  with  my                                                                    
     intellect, experience and  interview. He reiterated the                                                                    
     council's  concern  that  my [indisc.]  experience  was                                                                    
     somewhat  narrow, but  made it  clear that  the council                                                                    
     believed I would be a  good superior court judge. I was                                                                    
     just  not  the  most  qualified  in  this  group.  Most                                                                    
     surprisingly,   he  revealed   that  the   council  had                                                                    
     actually voted  unanimously to  request that  I reapply                                                                    
     in  the future.  Cohn said  he was  reminded that  most                                                                    
     judicial  candidates apply  several times  before their                                                                    
     names are  forwarded to the governor  and, therefore, I                                                                    
     shouldn't be too disappointed.                                                                                             
                                                                                                                                
     Bob  Groseclose, an  attorney  member  of the  Judicial                                                                    
     Council,  called  me  a few  days  later.  He  conveyed                                                                    
     essentially  the  same  views   and  encouraged  me  to                                                                    
     reapply.                                                                                                                   
                                                                                                                                
                                                                                                                                
He applied for  two superior court vacancies in July  2002 - less                                                               
than  10 months  after his  first application.  The bar  poll and                                                               
interview took  place just  a few months  before he  left private                                                               
practice to  become deputy attorney  general. The  September 2002                                                               
bar  poll resulted  in  18  candidates, a  large  group, and  his                                                               
overall rating was in  the middle of the pack at  3.5 with a much                                                               
wider range from  high to low from 4.2 -  2.8. His overall rating                                                               
among  judges was  3.4. His  second interview  with the  Judicial                                                               
Council was little  changed and it was very  positive and focused                                                               
on  his  specific  legal  qualification.  However,  he  knew  the                                                               
competition for the two spots was fierce.                                                                                       
                                                                                                                                
Mr. Cohn again  called on the same day of  the interview and told                                                               
him his name  wouldn't be sent to the governor.  The remarks were                                                               
positive, but  he was told  if his horizons didn't  expand beyond                                                               
his current practice,  it would be difficult to  be nominated. He                                                               
was  given the  impression that  a civil  defense lawyer  with no                                                               
criminal  or  family  law   experience,  however  competent,  was                                                               
unlikely to be the most qualified in a group of applicants.                                                                     
                                                                                                                                
His third application for superior  court was in April 2004 after                                                               
he had  been deputy attorney  general for  15 months. On  June 8,                                                               
2004, he  was called by Mr.  Cohn who suggested that  he withdraw                                                               
his name from consideration to  save himself the embarrassment of                                                               
a  low  bar  poll  rating becoming  public.  His  overall  rating                                                               
plummeted to  3.0 - last by  half a point among  nine candidates.                                                               
He was disappointed  and shocked by the bar poll  numbers. He was                                                               
told  there  were  many  positive   and  negative  comments.  The                                                               
negative comments, both anonymous and  signed, referred to him as                                                               
overbearing,   negative,  arrogant,   bullying  and   politically                                                               
motivated.  "No context  to the  criticisms would  be revealed  -                                                               
only the generalities." He declined to withdraw his name.                                                                       
                                                                                                                                
He asked  the committee to  look at the  summary of his  bar poll                                                               
results. The first chart summarizes  the primary ratings utilized                                                               
by the  council engaging candidates  - everybody's rating  in all                                                               
the  categories  and an  overall  rating  for folks  with  direct                                                               
professional experience with the applicant.                                                                                     
                                                                                                                                
     Among  only those  attorneys  with direct  professional                                                                    
     experience with me, my ratings  declined over a two and                                                                    
     half year period as  follows: professional competence -                                                                    
     down .4; integrity down .6;  fairness down .9 - this is                                                                    
     out  of  a  5  point  scale,  by  the  way  -  judicial                                                                    
     temperament down  .8; suitability  of experience  - now                                                                    
     this  is  extraordinary  -  I  become  deputy  attorney                                                                    
     general for  a year  and a half  after having  the same                                                                    
     job  essentially   for  15   years  -   suitability  of                                                                    
     experience down .6; overall rating down .7.                                                                                
                                                                                                                                
     The bar poll data provided to  me also and this goes to                                                                    
     the  second chart  here,  contains  information on  how                                                                    
     many  attorneys rated  each candidate  at a  particular                                                                    
     level  and this  is  very interesting  stuff. In  other                                                                    
     words, who  picked number 1 for  you, 2 for you,  3 for                                                                    
     you,  4 for  you.  How many  people said  you  are a  1                                                                    
     versus a  4 or  5 rather than  just an  average. That's                                                                    
     what you'll  see reflected in these  second two charts.                                                                    
     The bar poll data  provided to me contained information                                                                    
     on how many attorneys rated  each level at a particular                                                                    
     level, only for one  category...the overall rating with                                                                    
     direct  professional experience  -  not  all the  other                                                                    
     categories - competence,  integrity, fairness, just the                                                                    
     overall rating at the end....                                                                                              
                                                                                                                                
     The second and third charts  summarize that data for my                                                                    
     three  applications for  judgeship. As  you can  see in                                                                    
     the first two bar polls,  a small number of respondents                                                                    
     gave me an overall rating of 1 and 2.                                                                                      
                                                                                                                                
     An overall rating  of 1 means you are  poor. You seldom                                                                    
     meet  the  standards  of  the  profession.  An  overall                                                                    
     rating of  2 means you are  deficient. You occasionally                                                                    
     fall short of professional standards.                                                                                      
                                                                                                                                
     A review  of the bar  poll for the recent  vacancy, the                                                                    
     second chart  I have here for  you... demonstrates that                                                                    
     every candidate  of the nine  other than I had  a small                                                                    
     number of 1 and 2 ratings  - much like my first two bar                                                                    
     polls.  The number  of 1  and 2  ratings for  the other                                                                    
     candidates in this  bar poll was from 17 to  45, if you                                                                    
     add them up. In my prior  two bar polls, the average is                                                                    
     21,  but  now  look  at  my  current  bar  poll  -  101                                                                    
     respondents or 43.7 percent of  all those rating me now                                                                    
     think I do not meet  the minimum standards of the legal                                                                    
     profession. There  is a complete  lack of any  trend in                                                                    
     the  data to  support the  mean or  average rating  and                                                                    
     this is kind of technical....                                                                                              
                                                                                                                                
     Statistically  valid  surveys  generally form  a  bell-                                                                    
     shaped  curve over  the average....  You  can see  that                                                                    
     phenomenon  in the  other  candidates' ratings....  You                                                                    
     can see it in my prior  two bar poll ratings. But in my                                                                    
     current  poll, my  votes are  essentially a  flat line.                                                                    
     Approximately the same number  of attorneys rated me as                                                                    
     a 1, as a 2, as a 3, as a 4 and a 5 - flat line.                                                                           
                                                                                                                                
     Finally, take a  look at the last chart  on my summary.                                                                    
     First,  let  me  set  the  stage.  As  deputy  attorney                                                                    
     general, I  do not  appear in court.  From the  time of                                                                    
     the  September 2000  bar  poll until  now  I recall  no                                                                    
     direct  professional contact  with any  judge with  the                                                                    
     exception of one meeting with  the civil superior court                                                                    
     judge on  the civil division's  continued participation                                                                    
     in a  therapeutic court. That  meeting resulted  in the                                                                    
     action desired  by the  judge. It  was a  good meeting.                                                                    
     So,  I was  surprised  to see  that  based upon  direct                                                                    
     professional  experience -  this  isn't  just folks  by                                                                    
     reputation  or meeting  you in  Costco. or  something -                                                                    
     the judges  responding lowered  my overall  rating from                                                                    
     3.4 to  2.5 over that period  of time. All this  time I                                                                    
     had no direct professional  experience with any judges.                                                                    
     All the  other judge  ratings dropped  precipitously as                                                                    
     well  -  even   more  if  you  can   imagine.  Even  my                                                                    
     suitability of experience  rating dramatically declined                                                                    
     from  the  judges over  that  period  of time  with  no                                                                    
     contact with  them at all.  Now obviously,  there could                                                                    
     be  different judges  voting, but  one would  hope that                                                                    
     the  instrument   is  sufficiently  useful   that  that                                                                    
     wouldn't  be the  case -  that you  wouldn't just  have                                                                    
     something get completely  out of whack by  a few judges                                                                    
     changing out or something in the system.                                                                                   
                                                                                                                                
     Each of you  can draw your own conclusions,  but I find                                                                    
     these  comparisons extraordinary.  What questions  does                                                                    
     it  raise  for  the  committee?  First,  were  all  the                                                                    
     attorneys  who responded  to  this  anonymous bar  poll                                                                    
     being  accurate and  truthful in  their ratings?  A few                                                                    
     folks  righting a  perceived slight  from  the past  or                                                                    
     tanking  one   candidate  to  help  a   friend  can  be                                                                    
     expected. I  think that's  what those  20 or  30 people                                                                    
     that  tend  to  be  in  the  ones  and  twos  for  most                                                                    
     candidates involve. But this goes well beyond that.                                                                        
                                                                                                                                
     Second, what  explanation is there for  the generalized                                                                    
     belief among attorneys and judges  that I now regularly                                                                    
     fail to  meet the  minimum standards of  the profession                                                                    
     other than  my position as deputy  attorney general and                                                                    
     public nature  of the issues  I undertake on  behalf of                                                                    
     the  department's clients?  That leads  me to  my third                                                                    
     and final interview with the Judicial Council.                                                                             
                                                                                                                                
     On August 9  of this year I was  interviewed again. The                                                                    
     chief justice  once again asked  me to make  an opening                                                                    
     presentation. As in past interviews,  I went through my                                                                    
     legal resume  and described why  I think I will  make a                                                                    
     good judge,  but this time  I ended with a  very direct                                                                    
     discussion  about the  bar poll.  It  was described  by                                                                    
     them  as the  elephant in  the room.  They had  to talk                                                                    
     about  it. I  made a  statement along  the lines  I did                                                                    
     here  about  the  bar  poll.  I  gave  them  this  very                                                                    
     summary....                                                                                                                
                                                                                                                                
     Then  the  council began  questioning  me  one by  one.                                                                    
     After  being invited  to reapply  and twice  previously                                                                    
     interviewed,  the  tenor  and   the  substance  of  the                                                                    
     questioning  in  this  interview were  much  different.                                                                    
     There were no questions  from the council concerning my                                                                    
     15  years of  private legal  practice prior  to joining                                                                    
     the  Department of  Law -  nothing concerning  my trial                                                                    
     experience,  appellate   history  or   writing  skills.                                                                    
     Neither were  there questions about the  breadth of the                                                                    
     legal  issues I  now face  as deputy  attorney general.                                                                    
     Given the council's prior  concerns about my experience                                                                    
     and the  scope of my  experience, I assumed  this would                                                                    
     be of  great interest -  my supervision of  CINA cases,                                                                    
     juvenile delinquencies - all  of these things that were                                                                    
     concerns before  are now  areas that for  a year  and a                                                                    
     half I  have been  supervising attorneys  who do  it. I                                                                    
     thought  it  would  be   interesting,  but  it  wasn't.                                                                    
     Rather, the theme of the  council's questioning was the                                                                    
     bar  poll in  general  and  anonymous written  comments                                                                    
     from the  bar poll in particular.  Although the details                                                                    
     of  the  written  comments were  not  shared  with  me,                                                                    
     council  members quoted  or distilled  the comments  in                                                                    
     short phrases  like arrogant, bullying,  too political.                                                                    
     I  was repeatedly  asked to  comment  upon and  explain                                                                    
     these  comments.  Literally  they  would  say  it  says                                                                    
     arrogant,  arrogant, arrogant.  What is  your response?                                                                    
     I did  the best I could  to refute the charges,  but in                                                                    
     the absence  of any  context for  the contents,  it's a                                                                    
     difficult task.  Through the council's  questioning, it                                                                    
     became  clear  that  many   of  the  negative  comments                                                                    
     related to  the 2003  reorganization of  the management                                                                    
     team  in  the  civil  division  and  related  personnel                                                                    
     decisions made by the attorney  general. I explained at                                                                    
     some length how we  reached the decision to reorganize,                                                                    
     including  the independent  report from  the Conference                                                                    
     of  Western  Attorneys  General   that  made  the  very                                                                    
     recommendations we implemented....  I acknowledged that                                                                    
     personnel  decisions disappointing  to some  were made,                                                                    
     noting  that  the  management  team  of  more  than  20                                                                    
     attorneys  was reduced  to  10. I  was  asked how  this                                                                    
     reorganization   was  implemented   right  down   to  a                                                                    
     discussion  of my  interaction with  line attorneys  in                                                                    
     their offices  - when you  go into their office  how do                                                                    
     you  act -  that kind  of thing.  Again, there  were no                                                                    
     specific complaints  offered. Just the  allegation that                                                                    
     civil  division attorneys  were generally  dissatisfied                                                                    
     with  my style  of  leadership -  all apparently  based                                                                    
     upon these  anonymous written comments. I  responded to                                                                    
     the  charges at  length and  commented that  my overall                                                                    
     rating among  government attorneys, which is  where the                                                                    
     civil division  lawyers would be, was  at 3.2, slightly                                                                    
     better  than  the  average. So,  perhaps  they  weren't                                                                    
     quite as upset  as was suggested - at least  not all of                                                                    
     them.                                                                                                                      
                                                                                                                                
     Some of the  other questions posed by  the council were                                                                    
     unusual  and I  think this  goes to  the odd  questions                                                                    
     that  may have  been asked.  First, one  public member,                                                                    
     again referring  to anonymous written comment,  said it                                                                    
     says   here   you   support   conservative   Republican                                                                    
     policies. Is  that true? I  was truly surprised  by the                                                                    
     nature  of the  question and  I cite  the reference  in                                                                    
     there  to  bylaws  that   suggest  there  shouldn't  be                                                                    
     partisan   political    questioning.   Nonetheless,   I                                                                    
     confirmed  that I  was a  Republican who  worked for  a                                                                    
     Republican attorney general  and a Republican governor.                                                                    
     I  explained  that  I  do  not  set  policies  for  the                                                                    
     administration, but when asked  my opinion, I generally                                                                    
     agree with  its policy  goals. I went  on to  note that                                                                    
     the deputy  attorney general of the  civil division has                                                                    
     an   important  role   in   advancing  the   governor's                                                                    
     legislative  agenda  as   the  attorneys  drafting  and                                                                    
     advocating his legislation work  in the civil division.                                                                    
     I   cited  the   governor's  recent   reform  proposals                                                                    
     regarding  the Alaska  Workers'  Compensation Act,  the                                                                    
     Alaska  Human  Rights  Act and  the  Public  Employment                                                                    
     Relations Act  as examples  of legislation  that proved                                                                    
     controversial to some groups and  many lawyers - and we                                                                    
     certainly all remember those days.                                                                                         
                                                                                                                                
     As most of  you know, I was very involved  in all these                                                                    
     efforts  and  I  told  the   council  this  might  have                                                                    
     affected my  rating by the  bar. Then the  same council                                                                    
     members  asked another  question -  whose idea  was the                                                                    
     Workers'  Comp reform  bill. Again,  taken back  by the                                                                    
     question,  I  explained  that its  genesis  within  the                                                                    
     Department  of Law  was with  the attorneys  who defend                                                                    
     workers' compensation  cases on behalf of  the state. I                                                                    
     took  their ideas  to the  administration  and began  a                                                                    
     process that resulted in the governor's bill.                                                                              
                                                                                                                                
     The second  series of political questions  came from an                                                                    
     attorney member.  He asked whether  I was aware  of the                                                                    
     controversy surrounding  the former Alaska Oil  and Gas                                                                    
     Conservation     Commissioner,      Randy     Ruedrich,                                                                    
     specifically  his  disclosure   of  an  attorney/client                                                                    
     privileged document  to an outside  attorney. I  said I                                                                    
     was aware of the matter.  Who couldn't be, I suppose? I                                                                    
     then asked  whether the Department of  Law had referred                                                                    
     the attorney in question  to the Alaska Bar Association                                                                    
     for ethical  violations in connection with  keeping the                                                                    
     document.   I   said   I   did   not   supervise   that                                                                    
     investigation  and  was  unaware   of  whether  such  a                                                                    
     referral was made.  Furthermore, I noted that  if I was                                                                    
     aware of  such a referral,  bar rules would  prevent me                                                                    
     from revealing that  fact. There is a bar  rule site in                                                                    
     the document.  I'm sure the  lawyers here are  aware of                                                                    
     that. Not satisfied with my  answer, the council member                                                                    
     asked  if  I  had  been   in  charge  of  the  Ruedrich                                                                    
     investigation, would I have turned  in the attorney for                                                                    
     ethical violations. I explained  that the Department of                                                                    
     Law often  consulted with bar counsel  on ethics issues                                                                    
     and I might  have enquired, but I did  not know whether                                                                    
     professional  ethics precluded  receiving a  privileged                                                                    
     document.                                                                                                                  
                                                                                                                                
     The final question came from  another public member who                                                                    
     noted   my   close    connection   to   the   Murkowski                                                                    
     administration and asked, 'If we  send your name to the                                                                    
     governor, do you know what  advice the attorney general                                                                    
     will give the governor regarding this appointment?'                                                                        
                                                                                                                                
     I said  I had no idea  what his advice would  be, but I                                                                    
     was  hopeful that  the  quality of  my  work as  deputy                                                                    
     attorney  general in  the past  year and  a half  would                                                                    
     have a positive influence  on the appointment decision.                                                                    
     On a related note, an  attorney member asked whether my                                                                    
     use  of two  'political appointees'  as references  was                                                                    
     inappropriate.  Again  surprised  at  the  question,  I                                                                    
     explained  that  my use  of  Sean  Parnell, the  deputy                                                                    
     director  of Division  of Oil  and Gas,  as a  personal                                                                    
     reference  was based  upon  my  close friendship  going                                                                    
     back  nearly 20  years. The  use  of Greg  Renkes as  a                                                                    
     professional reference  was based  on the fact  that he                                                                    
     is one of  only two bosses I've had in  17 years. I did                                                                    
     put down my other boss,  Tom Owens, as well. So, anyway                                                                    
     you have to  have three; so I had to  find somebody who                                                                    
     wasn't  one of  my  bosses  and that  was  Tim Lam,  an                                                                    
     attorney  here  in  town.  At  the  conclusion  of  the                                                                    
     interview, I  was asked  if there  was anything  that I                                                                    
     thought could be improved in  the selection process. It                                                                    
     may have  been Mr. Groseclose  who asked that.  He said                                                                    
     he  often  does.  I explained  my  concerns  about  the                                                                    
     anonymous  bar poll  and  comments.  The chief  justice                                                                    
     then asked me,  'Why do you keep  applying?' I returned                                                                    
     to  the comments  that  I  made at  the  outset of  the                                                                    
     interview and expressed my  belief that the experience,                                                                    
     skills and temperament that I  would bring to the bench                                                                    
     would serve Alaskans well.                                                                                                 
                                                                                                                                
     Later that  day, Larry  Cohn called me  to let  me know                                                                    
     that once again  my name would not be  forwarded to the                                                                    
     governor. He  said that the council  determined all the                                                                    
     applicants  were  qualified  to  be  a  superior  court                                                                    
     judge, but only  three names would be  forwarded as the                                                                    
     most  qualified. He  told me  that  this interview  was                                                                    
     very different  than my prior  two. I agree  with that.                                                                    
     The council, he said, had  no further concerns about my                                                                    
     level of experience and it  continued to believe that I                                                                    
     was  competent and  qualified to  be  a superior  court                                                                    
     judge.  In fact,  the council  was not,  as he  put it,                                                                    
     hung up on  my bar poll results. He noted  that it made                                                                    
     no  sense for  my suitability  of experience  rating to                                                                    
     dramatically  decline  after becoming  deputy  attorney                                                                    
     general. But,  according to Cohn,  the council  had one                                                                    
     matter  it could  not overcome  - the  negative written                                                                    
     comments from  the bar poll. He  said I did a  good job                                                                    
     in responding to the questions  about the comments, but                                                                    
     it  was not  enough. I  asked how  many comments  there                                                                    
     were  and whether  they were  signed. He  would not  be                                                                    
     precise,  but he  said  there were  between  15 and  30                                                                    
     negative comments - some signed  and some not. He noted                                                                    
     the comments  largely concerned  decisions made  by the                                                                    
     attorney general  regarding the civil division  since I                                                                    
     became deputy  attorney general.  Again, he  would give                                                                    
     no details,  but he concluded by  saying, 'Absent those                                                                    
     comments, you  would have sailed through  the council.'                                                                    
     I asked  what he thought  I could do better  next time,                                                                    
     but he offered no  practical way to effectively respond                                                                    
     to  anonymous comments  from the  bar poll.  Unlike our                                                                    
     previous  post  bar  poll   conversations,  I  got  the                                                                    
     distinct   impression    that   he    thought   further                                                                    
     applications might be futile.                                                                                              
                                                                                                                                
     I  will conclude  my  remarks  with some  observations.                                                                    
     Again,  these are  my personal  opinions, not  those of                                                                    
     the administration. [End of Tape]                                                                                          
                                                                                                                                
TAPE 04-76, SIDE B                                                                                                            
                                                                                                                                
MR. NORDSTRAND continued:                                                                                                       
                                                                                                                                
     ...and the  fact that apparently  they weren't  hung up                                                                    
     on me being dead last  by quite a while. Curiously, the                                                                    
     15 to  30 attorneys  who made anonymous  comments about                                                                    
     my  character  and  qualifications, the  comments  they                                                                    
     couldn't get by, are among  the very same attorneys who                                                                    
     rated him  low numerically,  which ratings  were deemed                                                                    
     suspect. It's the same people.                                                                                             
                                                                                                                                
     Many  of the  candidates  for the  bench are  qualified                                                                    
     competent  attorneys  who  would  make  good  judges  -                                                                    
     probably  most candidates.  In  the  present case,  the                                                                    
     council concluded  that all nine candidates  meet those                                                                    
     criteria. But  once that threshold is  met, the council                                                                    
     must separate  the qualified  from the  most qualified.                                                                    
     From my  experience in the  process, that is  the point                                                                    
     where the  bar poll can  have its greatest  impact. But                                                                    
     what  are  you  going  to  look at?  If  the  bar  poll                                                                    
     provides fair, accurate  and reliable information, then                                                                    
     the most qualified will be chosen  - if it does - under                                                                    
     that scenario. All  things being equal, this  guy did a                                                                    
     little better than this person.  Otherwise, we face the                                                                    
     risk that  many qualified  candidates and even  some of                                                                    
     the most  qualifying candidates  will not  be nominated                                                                    
     to  the  governor,  because of  situations  like  this.                                                                    
     Sorry to be long-winded, but I wanted to be precise.                                                                       
                                                                                                                                
REPRESENTATIVE GARA observed that what jumps out at him is:                                                                     
                                                                                                                                
     Your first two times in 2001  and 2002 - if you look at                                                                    
     the page  where they have  the Alaska bar  poll results                                                                    
     for  Scott J.  Nordstrand  - The  first  two times  you                                                                    
     applied  before you  started  working  for the  current                                                                    
     administration,  120   people  responded.   That's  120                                                                    
     people  who  had  direct professional  experience  with                                                                    
     you. Your  poll ratings  then were  3.5, 3.7.  The next                                                                    
     time  was a  year  and  a half  after  you had  started                                                                    
     working  for  the  administration. You  had  worked  on                                                                    
     political issues for the administration  - been sort of                                                                    
     a  point person  on a  number of  issues. And,  at that                                                                    
     point,   the   number   of  people   who   had   direct                                                                    
     professional experience  with you  - you had  gone from                                                                    
     private practice  to now somebody  who did  private and                                                                    
     public practice -  the number of people  who had direct                                                                    
     professional experience with you  doubled. It went from                                                                    
     120  to  231. That  explains  the  jump and  I've  been                                                                    
     informed that the  jump is largely among  people in the                                                                    
     public  sector,  people  who  possibly  worked  in  the                                                                    
     attorney  general' office  or somewhere  in the  public                                                                    
     sector.  The   statistics  were  that  this   jump  was                                                                    
     primarily made up of additional  people who worked with                                                                    
     you  in the  public sector,  who  ran into  you in  the                                                                    
     public sector.                                                                                                             
                                                                                                                                
     And,  I  guess,  I'll  ask  you this  and  ask  you  to                                                                    
     respond. It  seems to  me the  most important  aspect I                                                                    
     would  consider in  reviewing a  judicial candidate  is                                                                    
     whether they're  going to be  impartial -  whether they                                                                    
     can  leave their  politics at  the door.  And so  for a                                                                    
     year and a half, you had  taken on a very political job                                                                    
     and in that  year and a half had run  into an extra 120                                                                    
     people  who got  to rate  you. Why  should I  not infer                                                                    
     from   this  that   a  number   of  additional   people                                                                    
     determined  that  your  political philosophy  was  very                                                                    
     important to you  and that maybe you would  have a hard                                                                    
     time being impartial  as a judge. I will  just leave it                                                                    
     with this.  I look around this  table and if all  of us                                                                    
     had legal  experience -  I can think  of two  people at                                                                    
     this  table,  including  you, who  I'm  sure  would  be                                                                    
     impartial in  my case -  if I  had a case  before them,                                                                    
     but I think  most of us - we've  entered this political                                                                    
     world and we've  created the impression to  the rest of                                                                    
     the people that  we're partial now. With  that, I would                                                                    
     just ask you to respond to those thoughts.                                                                                 
                                                                                                                                
MR. NORDSTRAND  responded that he  could be correct, but  that is                                                               
part of  the question  being discussed  - if  it is  possible for                                                               
someone like  the deputy  attorney general,  who has  a political                                                               
point of  view, to run  for judge  while continuing to  carry out                                                               
his duties to advocate for the governor's legislation.                                                                          
                                                                                                                                
     It gets to  the point of how good is  the tool, if it's                                                                    
     subject  to that  level of  foible. Remember  attorneys                                                                    
     now  respond  to  this  -  and it  says  right  at  the                                                                    
     instructions that  you are  required under  the ethical                                                                    
     rules to  answer truthfully and honestly.  The question                                                                    
     is whether or  not there really are  100 attorneys that                                                                    
     I  have dealt  with in  a direct  professional way  who                                                                    
     really think  that I seldom  meet the standards  of the                                                                    
     profession.  I mean  we don't  have the  other detailed                                                                    
     data, so  I can't tell who  voted for 1 and  2 in these                                                                    
     other  categories. I  suppose  the council  has it  and                                                                    
     maybe it could be  obtained. That would be interesting.                                                                    
     But  at the  end of  the day,  that's what's  troubling                                                                    
     about this. How  do you solve that problem?  How do you                                                                    
     compel accuracy  and honesty in this  process? You know                                                                    
     I think I am a bit of  a lightening rod and so all that                                                                    
     really  happened  here,  I  think,   is  the  flaw  was                                                                    
     accentuated, I think.  I think the flaw  exists in lots                                                                    
     of ratings  that are going  on only in smaller  ways. I                                                                    
     think this is just apparent  to me. But, I think you're                                                                    
     right.  I  think it  could  be  the  fact that  I  have                                                                    
     political  views that  are known  and people  know that                                                                    
     and  they   view  -   apparently  being   a  Republican                                                                    
     advocating  the  governor's  legislation and  point  of                                                                    
     view means  that you seldom  meet the standards  of the                                                                    
     profession now -  at least to 40 people.  That could be                                                                    
     right. I don't know.                                                                                                       
                                                                                                                                
REPRESENTATIVE ANDERSON  complimented him on  how good it  was to                                                               
work with him  during the last two legislative sessions  - it was                                                               
exceptional. Supplemental  to Representative Gara's  question, he                                                               
asked how many attorneys receive the poll.                                                                                      
                                                                                                                                
MR. NORDSTRAND replied that there are 2,500 lawyers in the bar.                                                                 
                                                                                                                                
REPRESENTATIVE ANDERSON said he sees Mr. Nordstrand's situation                                                                 
as one that highlights that suddenly another 80 extra attorneys                                                                 
responded and they were in the 1 and 2 category.                                                                                
                                                                                                                                
     So, it was almost in  my opinion like a punitive thing.                                                                    
     I don't know  how anyone could not  say that otherwise.                                                                    
     That being said, if you were  to accept that or not, is                                                                    
     it  your opinion  that  this has  a  chilling effect  -                                                                    
     what's happened  to you -  on what you appear  from the                                                                    
     record  as  a  qualified judicial  candidate  accepting                                                                    
     administrative jobs  - I mean  with Mayor  Begich, with                                                                    
     the legislature as  majority/minority counsel, whatever                                                                    
     level attorney  in whatever department. Who  would want                                                                    
     to if they read this?                                                                                                      
                                                                                                                                
MR. NORDSTRAND replied:                                                                                                         
                                                                                                                                
     It's an interesting thing, because  one of the comments                                                                    
     I recall  now that was  - I think  it was offered  as a                                                                    
     negative comment - one of  the anonymous comments said,                                                                    
     'He  just became  deputy attorney  general so  he could                                                                    
     become a  judge.' Now, I  don't know that  it's against                                                                    
     the law  or even bad  that I progress. I  was counseled                                                                    
     to  gain  broader  experience  and  I  can't  think  of                                                                    
     another job where I could  get broader legal experience                                                                    
     than being  deputy attorney general. I  don't know what                                                                    
     it would be, maybe attorney  general. That would be the                                                                    
     only  one I  suppose.  So,  it's kind  of  - I  thought                                                                    
     taking this job -  bright-eyed, bushy tailed, brand new                                                                    
     deputy - thought this will  be good, you know. I'll get                                                                    
     to know more people - more  people will get to know me.                                                                    
     The Judicial  Council will see  that I'm  broadening my                                                                    
     horizons  -  that  will  be   good.  I've  had  a  good                                                                    
     experience  there. And  so I  kind of  thought the  bar                                                                    
     poll is either  going to be very good or  it's going to                                                                    
     be very bad.  Because there was this in the  back of my                                                                    
     mind, you  know, I'm  out in  front of  a lot  of these                                                                    
     issues for  the governor  and the attorney  general and                                                                    
     what if people don't like  what I'm saying? Not how I'm                                                                    
     saying  it, trying  to be  respectful, trying  to do  a                                                                    
     good job, but what I'm  saying. What if they don't like                                                                    
     what I'm  saying? I guess  I found out. Yeah,  it could                                                                    
     have a  chilling effect, although it's  probably not on                                                                    
     a lot of  jobs. My job is fairly involved,  but I would                                                                    
     think  deputy  commissioner  jobs and  those  kinds  of                                                                    
     things   where  you   might  have   a  lawyer,   deputy                                                                    
     commissioner  jobs, governor's  office jobs,  where you                                                                    
     might have lawyers  doing the work. You  ought to think                                                                    
     about it.                                                                                                                  
                                                                                                                                
REPRESENTATIVE ANDERSON said he had an exposure in his year and                                                                 
a half to all the parameters.                                                                                                   
                                                                                                                                
MR. NORDSTRAND added:                                                                                                           
                                                                                                                                
     I'm just telling  you my story. It may not  be the same                                                                    
     for  anybody  else,  but  the  civil  division  is  the                                                                    
     largest law firm  in the State of Alaska by  about 8 or                                                                    
     10  times. We  have  135 lawyers,  you  know, an  equal                                                                    
     number of staff and paralegals.  So, when you come into                                                                    
     office and  you want to  change some things,  which the                                                                    
     attorney   general  did,   and  I   think  justifiably,                                                                    
     empirically  correctly,  change   is  hard.  Government                                                                    
     doesn't  take  to  change  that  well  and  lawyers  in                                                                    
     government  don't  always  take the  change  that  well                                                                    
     either.  There's  an  awful lot  of  unbelievably  hard                                                                    
     working   intelligent   lawyers   who  work   for   the                                                                    
     Department of Law. But, that  being said, we did change                                                                    
     some  things and  that causes  some problems.  But when                                                                    
     you're running  the biggest law  firm and  there's only                                                                    
     230 people  who vote for  you and 135 lawyers  work for                                                                    
     you, it's kind of an interesting situation.                                                                                
                                                                                                                                
REPRESENTATIVE ANDERSON said, "My favorite attorney general is                                                                  
still Doug Bailey."                                                                                                             
                                                                                                                                
REPRESENTATIVE SAMUELS said:                                                                                                    
                                                                                                                                
     The  thing that  kind  of troubles  me  is that  nobody                                                                    
     likes the boss. That's the way  it is, but the last one                                                                    
     on your chart where if  you had no more experience with                                                                    
     the actual  judges themselves  and your  ratings across                                                                    
     the board  dropped, that is  pretty troubling  and just                                                                    
     the  questions that  were  posed  by the  commissioners                                                                    
     themselves seemed  to be on  policy questions  that you                                                                    
     should have  been posing to  the governor  himself. You                                                                    
     know, I didn't particularly  care for the workers' comp                                                                    
     bill myself,  but you shouldn't get  blamed. It appears                                                                    
     - I'm  sure there is  another side  to it also,  but to                                                                    
     get  asked a  political  question  is troubling  unless                                                                    
     everybody  got asked  political questions  or religious                                                                    
     questions.                                                                                                                 
                                                                                                                                
CO-CHAIR  SEEKINS asked  if there  was any  breakout that  he was                                                               
aware  of  on the  bar  poll  responses  other than  location  or                                                               
judicial. "Did the  Fairbanks community all of a  sudden turn out                                                               
against you?  Did the Juneau community  all of a sudden  turn out                                                               
against you? Where was the change? Do you have any idea?"                                                                       
                                                                                                                                
MR. NORDSTRAND replied:                                                                                                         
                                                                                                                                
     Yes, actually the  detailed information that's provided                                                                    
     - it's a great big chart  by each candidate. They go by                                                                    
     judicial district  and they can  find out  where you're                                                                    
     popular  and  where you're  not.  In  fact, the  fourth                                                                    
     judicial  district  clearly had  a  problem  with me  -                                                                    
     Fairbanks. I was rated overall 1.4 in Fairbanks.                                                                           
                                                                                                                                
CO-CHAIR SEEKINS asked him what he did in Fairbanks.                                                                            
                                                                                                                                
MR. NORDSTRAND replied:                                                                                                         
                                                                                                                                
     The problem  is a lot of  issues come up when  I employ                                                                    
     135  lawyers  that  are  personnel  matters,  that  are                                                                    
     reorganizational matters, that I  know people might not                                                                    
     feel went the way they would like.                                                                                         
                                                                                                                                
CO-CHAIR SEEKINS asked:                                                                                                         
                                                                                                                                
     Are you  feeling as if  some managerial  decisions that                                                                    
     were  made  in the  department  were  reflected in  the                                                                    
     comments on the bar poll -  that had nothing to do with                                                                    
     your legal qualifications?                                                                                                 
                                                                                                                                
MR. NORDSTRAND replied:                                                                                                         
                                                                                                                                
     There  is no  question about  that. The  questions from                                                                    
     the  council members  went to  what's  wrong with  your                                                                    
     management style?  Why are  these lawyers  saying these                                                                    
     things?  I   got  the  impression  they   had  specific                                                                    
     information. They  won't share  it with me,  of course,                                                                    
     to  maintain the  anonymity because  - that's  the hard                                                                    
     part  of  this.  They  say   well,  people  say  you're                                                                    
     arrogant. Tell us  why you're not. Well,  that's a hard                                                                    
     question. I mean I don't know how to do that.                                                                              
                                                                                                                                
CO-CHAIR SEEKINS quipped, "I know a lot of arrogant lawyers."                                                                   
                                                                                                                                
SENATOR  FRENCH said  he thought  the bar  poll has  its greatest                                                               
impact because that is where  the council separates the qualified                                                               
from  most qualified  applicants. He  said that  he had  an issue                                                               
with the council more than  once when the highest rated candidate                                                               
couldn't get forwarded  to the governor. He asked  him to comment                                                               
on  how that  experience jibed  with his  seemingly low  bar poll                                                               
rating, which kept his name from being forwarded.                                                                               
                                                                                                                                
MR. NORSTRAND replied  that he understands that the  low bar poll                                                               
result  didn't  keep  his  name   from  being  forwarded  to  the                                                               
governor; the numbers  were deemed to be  sufficiently "funny" to                                                               
not  hold him  back. But  rather  it was  the anonymous  negative                                                               
comments. When  he says bar poll,  he is talking about  its whole                                                               
structure - the numbers, the written comments - some sign the                                                                   
written comments and some don't.                                                                                                
                                                                                                                                
     If what I understand is  true, then that did prevent me                                                                    
     from going  forward. I  apparently cruised  through the                                                                    
     council  absent these  comments. Now,  I don't  know if                                                                    
     anybody  is going  to ever  be absent  all comments.  I                                                                    
     don't think I was the  first two times, either. If that                                                                    
     can  have  that  effect  on  one  candidate,  then  the                                                                    
     question becomes how good is  the instrument that we're                                                                    
     using for  that? How  reliable? If  we don't  trust the                                                                    
     100 people  who check 1 and  2 and we say,  'Jeez, that                                                                    
     looks funny. Why would that  be?' Then why do we listen                                                                    
     to their  written comment on  the opposite side  of the                                                                    
     page that  says, 'I  don't like him  - too  political -                                                                    
     whatever.  Why wouldn't  we say  the  same thing  about                                                                    
     that and  that's what I  didn't quite  understand about                                                                    
     the process  here, but it  all goes back to  this whole                                                                    
     idea  of anonymity.  Anonymity has  good points  and it                                                                    
     has bad  points. Good points  - you supposedly  get the                                                                    
     honest  view point  without  any  worry about  somebody                                                                    
     finding out  I said whatever  about you as  a candidate                                                                    
     or about  Representative Gara as  a candidate  or about                                                                    
     me. On the  other hand, it can be a  license and that's                                                                    
     where it  becomes dangerous  because people  they don't                                                                    
     know check direct professional  experience and give him                                                                    
     a 1 because they've got  a guy whose running they would                                                                    
     really like to help out.  You know that would help out.                                                                    
     When  you've only  got 120  people  voting doing  that,                                                                    
     two, three or  four people doing that, how  much do you                                                                    
     trust every member  of the bar to  be completely honest                                                                    
     and  accurate about  this stuff?  That's what  it comes                                                                    
     down to.                                                                                                                   
                                                                                                                                
SENATOR FRENCH asked what constructive ideas he had to offer.                                                                   
                                                                                                                                
MR. NORDSTRAND suggested making the bar poll transparent by                                                                     
requiring all comments to be signed so they can be useful rather                                                                
than manipulated.                                                                                                               
                                                                                                                                
     The question  is whether this  is a really  useful tool                                                                    
     or can it  be manipulated and if it  can be manipulated                                                                    
     to  affect one  candidacy, do  we keep  it for  all the                                                                    
     rest just  because it's pretty  good for them?  I don't                                                                    
     know. I would say  anonymous written comments ought not                                                                    
     be considered at all.... The  ones that are written, if                                                                    
     they  really  are  substantive...  and  they've  got  a                                                                    
     context.... You  can't respond to generalities.  I have                                                                    
     talked  to  other candidates  who  have  had this  same                                                                    
     trouble, maybe not  the same words, but  the same idea.                                                                    
     It's   just  a   characteristic.  Please   refute  this                                                                    
     characteristic and it's impossible. That's one thing.                                                                      
                                                                                                                                
     The  second thing  is transparency  in  the process.  I                                                                    
     would  say have  all of  the interviews  in public  and                                                                    
     make them  a hearing. We don't  need to do any  more of                                                                    
     these in  conference rooms. Put  them in a  public room                                                                    
     like  this and  have the  interviews where  people know                                                                    
     about them, can come and watch them.                                                                                       
                                                                                                                                
     The questions that I gave  you, because I know you were                                                                    
     interested in  the kinds of  questions that may  be out                                                                    
     of line  - that's  not to say  that there  weren't lots                                                                    
     and  lots  of  other   questions  that  were  perfectly                                                                    
     appropriate.  I'm  giving  you  the  examples,  because                                                                    
     that's  what I  think is  of interest.  But there  were                                                                    
     lots of questions that were  appropriate. But isn't the                                                                    
     best  way   to  insure  that  folks   don't  ask  goofy                                                                    
     questions  like  do  you  really  support  conservative                                                                    
     Republican policies.  The best way  to get out  of that                                                                    
     is to  just have it  be in the  public. KTUU is  in the                                                                    
     back  and somebody  says  that -  well,  you can't  ask                                                                    
     that. But that doesn't  happen because it's now private                                                                    
     and I  know there's this  option where you can  make it                                                                    
     public, but  how would you like  to be the one  guy out                                                                    
     of nine who  says I want mine in public?  I don't think                                                                    
     that's a good idea. I'd say  the better way to make the                                                                    
     process  is  to  encourage more  public  hearings  like                                                                    
     you've talked  about -  greater participation,  put the                                                                    
     application,  the interview  process  in public,  maybe                                                                    
     even put  the deliberation process in  public. Why not?                                                                    
     We've managed  to come up  with a whole lot  of federal                                                                    
     judges in a  system in Washington where  they debate it                                                                    
     right out  in front of  God and everybody who  ought to                                                                    
     be a good judge or not.                                                                                                    
                                                                                                                                
     The  argument  for  making  it  private  is  there  are                                                                    
     personal matters  that are discussed. I've  never had a                                                                    
     personal  matter discussed.  The  impression  I get  of                                                                    
     what  the personal  matter  is  these comments.  People                                                                    
     don't want  to have  a hearing where  they come  in say                                                                    
     you're arrogant and  you're a bully and  you're this. I                                                                    
     think  that's the  personal part  that we're  trying to                                                                    
     protect.                                                                                                                   
                                                                                                                                
     It's not  the part  of the  application where  you tell                                                                    
     how much money you've got in  the bank or don't have in                                                                    
     the  bank.  Sure  there  are  provisions  in  the  Open                                                                    
     Meetings Law  to allow an  executive session  for truly                                                                    
     private  things  -  money,   family  issues  or  health                                                                    
     issues,  that  kind  of  thing. Why  would  we  have  a                                                                    
     discussion   about  things   like  people   say  you're                                                                    
     arrogant? Why would  that be private? If  that's a real                                                                    
     issue,  I would  think that  ought be  the most  public                                                                    
     debate.  So, those  are  the two  things  that I  would                                                                    
     personally suggest  - open up  the bar poll -  you want                                                                    
     to vote, you got to say who you are.                                                                                       
                                                                                                                                
     There's a tendency  to think this is  like an election,                                                                    
     so we  ought to have  to keep it anonymous.  This isn't                                                                    
     vote  yes or  no  for Scott  Nordstrand.  This is  rate                                                                    
     Scott Nordstrand  honestly, under the rules  of ethics.                                                                    
     That's what  this is;  it's not  an election.  The same                                                                    
     concerns about anonymity, while  I understand them, can                                                                    
     create mischief, at the very least.                                                                                        
                                                                                                                                
CO-CHAIR SEEKINS speculated that he could see reasons for                                                                       
anonymity because he might be appearing before him in the                                                                       
future.                                                                                                                         
                                                                                                                                
MR.  MICHAEL COREY,  Anchorage civil  attorney,  said he  handles                                                               
insurance  defense and  personal  injury issues.  He pointed  out                                                               
that one member of the council  was not present when it voted for                                                               
him  and that  a  majority of  members have  to  vote; the  chief                                                               
justice breaks a tie. He said:                                                                                                  
                                                                                                                                
     I  thought that  the  process with  respect  to me  was                                                                    
     fair.  I thought  that  I  was shown  a  great deal  of                                                                    
     respect.  The applicants  know who  voted for  them and                                                                    
     who  voted  against and  I  don't  think that's  really                                                                    
     necessary in  this context. But  knowing who  voted for                                                                    
     me  and who  voted  against actually  in  my mind  only                                                                    
     heightens  my respect  for the  process, because  as it                                                                    
     turns out, some  of the individuals who  did choose not                                                                    
     to endorse  me were the  very people who showed  me the                                                                    
     courtesy of  engaging me in the  discussion longer than                                                                    
     some  of the  others who  did vote  for me  and so,  it                                                                    
     clearly  was not  something that  they had  pre-planned                                                                    
     out of  hand to simply  dismiss me and  my application.                                                                    
     So, I thank  them for engaging me in  those areas where                                                                    
     they  thought  there  were issues  that  needed  to  be                                                                    
     addressed. What  they don't  do is  they don't  talk to                                                                    
     you about  all the comments  where they pat you  on the                                                                    
     back. It's  really not  necessary; it's  those comments                                                                    
     where   somebody   maybe   challenges  your   lack   of                                                                    
     experience in  a particular area.  For me, that  was in                                                                    
     the  criminal  section.  I   don't  have  any  criminal                                                                    
     experience. In  fact, I rather  pride myself  not being                                                                    
     in criminal matters.  The point is that was  one of the                                                                    
     areas and they did engage me in that.                                                                                      
                                                                                                                                
REPRESENTATIVE GARA asked if the council "didn't take it out on                                                                 
you that you're a registered Republican."                                                                                       
                                                                                                                                
MR. COREY replied that he didn't feel that:                                                                                     
                                                                                                                                
     The  people that  come  to that  council,  as with  any                                                                    
     body,  come  to  that  with a  certain  sense  of  life                                                                    
     experiences  that they  have  developed.  I think  that                                                                    
     when somebody is trying to  pass on whether or not they                                                                    
     think someone is qualified for  a certain task, I think                                                                    
     it's human  nature to think that  they, themselves, are                                                                    
     qualified  and so  they use  themselves as  a standard.                                                                    
     So,  if you  have a  certain collection  of people  who                                                                    
     come  more  from one  walk  of  life than  another  and                                                                    
     you're  being judged  by those  people and  you do  not                                                                    
     most closely compare with those  folks, I think there's                                                                    
     a  tendency  for  other people  to  think  that  that's                                                                    
     skewed  against you.  I think  that's  human nature.  I                                                                    
     don't think anybody said oh  well, Corey is Republican.                                                                    
     He's out.  I didn't  get that  sense at  all, but  I do                                                                    
     understand that there is at  least that appearance, but                                                                    
     I  don't think  it had  anything to  do with  it in  my                                                                    
     situation,  but  I'm  not nearly  as  controversial  an                                                                    
     applicant as maybe some others may have been.                                                                              
                                                                                                                                
REPRESENTATIVE SAMUELS asked if he was asked any questions                                                                      
regarding political affiliation.                                                                                                
                                                                                                                                
MR.  COREY replied  no. He  added  that he  recognizes there  are                                                               
boundaries to the kinds of questions  that are asked, but the job                                                               
of being judge  is sufficiently important that  a person's entire                                                               
life should be an open book.                                                                                                    
                                                                                                                                
     My own  personal view  is that  this job  - the  one of                                                                    
     being  a judge  - is  sufficiently important  that your                                                                    
     entire life  should be an  open book. At  least, that's                                                                    
     my view. I  wouldn't care if you held  this in Sullivan                                                                    
     Arena  and  you asked  me  the  most private  questions                                                                    
     around,  because  I think  the  populace  that you  are                                                                    
     going to  judge is entitled  to know that.  That's just                                                                    
     me and I wouldn't impose  that on others. But, if we're                                                                    
     talking about solely  me, I would be  willing to submit                                                                    
     to that level of scrutiny.                                                                                                 
                                                                                                                                
REPRESENTATIVE SAMUELS asked if he agreed with Mr. Nordstrand's                                                                 
assessment that the bar poll should be signed and the hearings                                                                  
should be open.                                                                                                                 
                                                                                                                                
MR. COREY replied:                                                                                                              
                                                                                                                                
     I  am not  here to  try  and lobby  for any  particular                                                                    
     changes,  because I  think actually  we  have a  pretty                                                                    
     darn  good  judiciary  produced   by  this  process.  I                                                                    
     suspect that  if I  were the one  serving as  czar over                                                                    
     this process, I would  say that unless written comments                                                                    
     are signed, I would  disregard them completely. Because                                                                    
     I think  if somebody is  unwilling to affix  their name                                                                    
     to  comments,  they  should not  be  given  really  any                                                                    
     weight. It's  the whole idea of  cross-examination. You                                                                    
     have to  face the  music. If you're  willing to  make a                                                                    
     statement about something, you have  to be, in my view,                                                                    
     willing to back that up  when somebody who may not have                                                                    
     the  same views  that  you have  want  to question  the                                                                    
     reason,  the  rationale,  the  underpinnings  of  those                                                                    
     views. Whether  or not it's  public or private,  I have                                                                    
     kind  of already  answered  that  question, because  at                                                                    
     least  my own  personal view  is that  I wouldn't  mind                                                                    
     doing that in  public. But I don't know that  I feel so                                                                    
     strongly that  I would impose  that on others.  I don't                                                                    
     see the problem.  I understand that Mr.  Nordstrand - I                                                                    
     mean I listened to what he  said - I understand that he                                                                    
     feels snake bit by the  process. I'm not here to either                                                                    
     fix  it for  him or  try to  change if  for him  or for                                                                    
     anybody  else.  Depending  on  how   you  look  at  the                                                                    
     numbers, maybe he  got a bum rap, maybe  he didn't. I'm                                                                    
     an advocate; I could  construct an argument either way.                                                                    
     That's  what's expected  of me.  Some  of the  concerns                                                                    
     that  he  raised, I  think,  are  legitimate, but  I've                                                                    
     never served as  council member. So, I  don't know what                                                                    
     I personally would do with a bar poll.                                                                                     
                                                                                                                                
     Let me say this, if  the bar poll controlled whether or                                                                    
     not  his name  went to  the governor  and if  there was                                                                    
     something afoot - I don't  mean something that sinister                                                                    
     - but if the bar  poll really was skewed unfairly, then                                                                    
     yeah,  that part  of it  should be  fixed, undoubtedly.                                                                    
     But,  I  don't  mean  to   champion  his  cause  or  to                                                                    
     criticize him either. Clearly,  he feels strongly about                                                                    
     his experience and  I feel strongly about  mine. I feel                                                                    
     that I was given a fair shake....                                                                                          
                                                                                                                                
CO-CHAIR MCGUIRE  closed the meeting thanking  everyone for their                                                               
comments and said holding this  meeting was a difficult decision.                                                               
She  and  Senator  Seekins  decided  that  the  level  of  public                                                               
concern, both  pro and  con, rose  to a level  that they  felt an                                                               
obligation to bring  the issue to light. She  emphasized that the                                                               
people  attending the  hearing came  at their  request. "I  don't                                                               
think anybody came here  with an axe to grind and  I think we all                                                               
learned a lot."                                                                                                                 
                                                                                                                                
CO-CHAIR  SEEKINS asked  Mr.  Corey  if he  said  the process  is                                                               
working well and  encouraged them to think about  putting it more                                                               
in the open.                                                                                                                    
                                                                                                                                
MR. COREY replied that is accurate.                                                                                             
                                                                                                                                
     In terms of the openness,  I think it's more a function                                                                    
     of accountability.  If someone chooses to  make written                                                                    
     comments,  I  think  they  should  sign  them  or  they                                                                    
     shouldn't make them  at all. I think to be  fair to the                                                                    
     applicant....   I  could   get  to   live  without   me                                                                    
     personally  knowing who  said  what,  because it  would                                                                    
     help the  council to  perhaps be  able to  question me.                                                                    
     But I think if someone  is unwilling to sign their name                                                                    
     to written  comments, there's too much  chance for them                                                                    
     to hide  behind the  process. I personally  don't think                                                                    
     that's fair.                                                                                                               
                                                                                                                                
CO-CHAIR SEEKINS  said he  struggled with  that, too,  because he                                                               
understands the  need to have  a certain level of  anonymity when                                                               
there  could  be retribution  -  for  making an  honest  comment.                                                               
However,  he also  understands how  anonymity  can be  used as  a                                                               
weapon unjustly. It's very difficult to find the balance.                                                                       
                                                                                                                                
MR.  COREY  said  he  is   not  advocating  that  the  individual                                                               
applicants be  provided the  comments along  with the  names, but                                                               
that accountability should be to  the council. To protect against                                                               
that retribution,  the applicant  could be precluded  from seeing                                                               
that.                                                                                                                           
                                                                                                                                
CO-CHAIR  SEEKINS  said in  terms  of  his own  appreciation,  he                                                               
appreciated  every member  who  took  the time  to  come to  this                                                               
meeting. He emphasized  that the hearing did not have  to do with                                                               
Mr. Nordstrand's name not being forwarded.                                                                                      
                                                                                                                                
     Anyone who  would attribute that  motive to  me doesn't                                                                    
     know me,  doesn't understand  me and  is making  a very                                                                    
     serious mistake. I'm  not accusing you of  that. I just                                                                    
     want to put it on the record.                                                                                              
                                                                                                                                
There being no further business to come before the committee,                                                                   
CO-CHAIR SEEKINS adjourned the meeting at 5:13 p.m.                                                                             
                                                                                                                                
                                                                                                                                

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