04/10/2013 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB34 | |
| HB200 | |
| HB54 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 200 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 54 | TELECONFERENCED | |
| += | HB 34 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 10, 2013
1:05 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Bob Lynn, Vice Chair
Representative Neal Foster
Representative Gabrielle LeDoux
Representative Charisse Millett
Representative Lance Pruitt
Representative Max Gruenberg
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Steve Thompson
COMMITTEE CALENDAR
HOUSE BILL NO. 34
"An Act making state compliance with a federal law, regulation,
or presidential executive order contingent on receipt of certain
information from the federal government."
- HEARD & HELD
HOUSE BILL NO. 200
"An Act relating to the Alaska Judicial Council and to judicial
retention elections."
- HEARD & HELD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 54
"An Act relating to the identification, location, and
notification of specified family members and family friends of a
child who is in state custody."
- MOVED CSSSHB 54(HSS) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 34
SHORT TITLE: FEDERAL LAWS, REGULATIONS & EXEC. ORDERS
SPONSOR(S): REPRESENTATIVE(S) T.WILSON
01/16/13 (H) PREFILE RELEASED 1/7/13
01/16/13 (H) READ THE FIRST TIME - REFERRALS
01/16/13 (H) JUD
02/25/13 (H) JUD AT 1:00 PM CAPITOL 120
02/25/13 (H) Heard & Held
02/25/13 (H) MINUTE(JUD)
03/22/13 (H) JUD AT 1:00 PM CAPITOL 120
03/22/13 (H) Heard & Held
03/22/13 (H) MINUTE(JUD)
04/08/13 (H) JUD AT 1:00 PM CAPITOL 120
04/08/13 (H) Scheduled But Not Heard
04/10/13 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 200
SHORT TITLE: ACTIVITIES OF THE JUDICIAL COUNCIL
SPONSOR(S): REPRESENTATIVE(S) KELLER
04/05/13 (H) READ THE FIRST TIME - REFERRALS
04/05/13 (H) JUD
04/10/13 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 54
SHORT TITLE: PLACEMENT OF A CHILD IN NEED OF AID
SPONSOR(S): REPRESENTATIVE(S) GARA, THOMPSON
01/16/13 (H) PREFILE RELEASED 1/11/13
01/16/13 (H) READ THE FIRST TIME - REFERRALS
01/16/13 (H) HSS, JUD
01/24/13 (H) SPONSOR SUBSTITUTE INTRODUCED
01/24/13 (H) READ THE FIRST TIME - REFERRALS
01/24/13 (H) HSS, JUD
02/07/13 (H) HSS AT 3:00 PM CAPITOL 106
02/07/13 (H) Scheduled But Not Heard
02/26/13 (H) HSS AT 3:00 PM CAPITOL 106
02/26/13 (H) Heard & Held
02/26/13 (H) MINUTE(HSS)
04/02/13 (H) HSS AT 3:00 PM CAPITOL 106
04/02/13 (H) Moved CSSSHB 54(HSS) Out of Committee
04/02/13 (H) MINUTE(HSS)
04/04/13 (H) HSS RPT CS(HSS) NT 3DP 4NR
04/04/13 (H) DP: TARR, NAGEAK, SEATON
04/04/13 (H) NR: KELLER, PRUITT, REINBOLD, HIGGINS
04/08/13 (H) JUD AT 1:00 PM CAPITOL 120
04/08/13 (H) Heard & Held
04/08/13 (H) MINUTE(JUD)
04/09/13 (H) JUD AT 1:00 PM CAPITOL 120
04/09/13 (H) Heard & Held
04/09/13 (H) MINUTE(JUD)
04/10/13 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE TAMMIE WILSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 34.
JIM POUND, Staff
Representative Wes Keller
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 200 on behalf of the sponsor,
Representative Keller.
NANCY MEADE, General Counsel
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 200 and
responded to questions.
WALTER L. CARPENETI
Juneau, Alaska
POSITION STATEMENT: As a former chief justice of the Alaska
Supreme Court and as a former chair of the Alaska Judicial
Council (AJC), provided comments and responded to questions
during discussion of HB 200.
MICHAEL PAULEY, Lobbyist
Alaska Family Action, Inc.
Alaska Family Council
Kenmore, Washington
POSITION STATEMENT: Testified in support of HB 200.
ROBERT FLINT, Member
Board of Directors
Alaska Family Council
Anchorage, Alaska
POSITION STATEMENT: Testified in favor of HB 200.
LARRY COHN, Executive Director
Alaska Judicial Council (AJC)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 200.
REPRESENTATIVE LES GARA
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of SSHB 54, provided
comments as one of the bill's joint prime sponsors.
CHRISTY LAWTON, Director
Central Office
Office of Children's Services (OCS)
Department of Health and Social Services (DHSS)
Fairbanks, Alaska
POSITION STATEMENT: Responded to a question during discussion
of SSHB 54.
ACTION NARRATIVE
1:05:23 PM
[Note: On the audio recording this meeting is misidentified as
the House Health and Social Services Standing Committee meeting
of 4/9/13.]
CHAIR WES KELLER called the House Judiciary Standing Committee
meeting to order at 1:05 p.m. Representatives Keller, Foster,
LeDoux, Lynn, and Millett were present at the call to order.
Representatives Gruenberg and Pruitt arrived as the meeting was
in progress. Representative Thompson was also in attendance.
HB 34 - FEDERAL LAWS, REGULATIONS & EXEC. ORDERS
1:05:39 PM
CHAIR KELLER announced that the first order of business would be
HOUSE BILL NO. 34, "An Act making state compliance with a
federal law, regulation, or presidential executive order
contingent on receipt of certain information from the federal
government." [Before the committee was a proposed committee
substitute (CS) for HB 34, Version 28-LS0195\C, Nauman, 1/30/13,
adopted as the working document on 2/25/13; included in members'
packets was a new proposed CS for HB 34, Version 28-LS0195\O,
Nauman, 4/1/13.]
1:06:09 PM
REPRESENTATIVE LYNN moved to adopt the proposed committee
substitute (CS) for HB 34, Version 28-LS0195\O, Nauman, 4/1/13,
as the working document. There being no objection, Version O
was before the committee.
1:06:41 PM
REPRESENTATIVE TAMMIE WILSON, Alaska State Legislature, sponsor,
mentioning that she would be working during the interim to
address concerns with HB 34, explained that Version O of the
bill would preclude the state from complying with a federal law,
federal regulation, or presidential executive order until the
state requests from the federal government a written report on
the economic effect - on the state, on the community, on
industry, and on the local government - of complying with the
federal law, federal regulation, or presidential executive
order; and would preclude the state from accepting any
associated federal funding until either the federal government
or the state provides that written report. Under Version O, the
state would request the written report from the federal
government, but if the federal government does not provide it
within 90 days, then the state would instead prepare the report
and transmit it to the legislature.
REPRESENTATIVE T. WILSON explained that also under Version O,
the state would be required to complete a similar report for all
state laws, state regulations, and executive orders; the
Administrative Regulation Review Committee would be required to
provide certain types of information about proposed regulations
in its statutorily-required notifications, and would be required
to submit comments to the lieutenant governor on the proposed
regulations prior to those regulations being filed by the
lieutenant governor; and the lieutenant governor would in turn
[be required to review those comments, and would] have the
discretion to return the proposed regulations to the appropriate
department for further consideration. The changes proposed by
HB 34, she proffered, would result in the state and industry
having a better understanding of the economic ramifications of
federal and state laws, regulations, and executive orders, and
thereby be better-equipped to make decisions. In conclusion,
she reiterated that she would be working during the interim to
address concerns with HB 34.
[HB 34, Version O, was held over.]
HB 200 - ACTIVITIES OF THE JUDICIAL COUNCIL
1:09:03 PM
CHAIR KELLER announced that the next order of business would be
HOUSE BILL NO. 200, "An Act relating to the Alaska Judicial
Council and to judicial retention elections."
CHAIR KELLER, as the sponsor of HB 200, referred to the Alaska
State Constitution, and noted that Article IV, Section 8, in
part stipulates that the Alaska Judicial Council shall act
according to rules which it adopts; and that Article IV,
Section 9, in part stipulates that the Alaska Judicial Council
shall perform other duties assigned by law. He indicated that
HB 200 is being offered because there was confusion during the
last election [regarding those rules and duties].
1:10:46 PM
JIM POUND, Staff, Representative Wes Keller, Alaska State
Legislature, on behalf of the sponsor, Representative Keller,
relayed that HB 200 would preclude the Alaska Judicial Council
(AJC) from providing the voters with a recommendation relating
to a judge or justice seeking retention, a practice which some
feel to be unfair. He assured the committee that under the
bill, the AJC would still be able to review [things about]
Alaska's judges and justices, and submit certain information for
inclusion in the election pamphlet.
1:12:48 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System (ACS), said the
ACS opposes HB 200 and has serious concerns with it. In
response to questions, she explained that although the ACS
usually declines to take a position on proposed legislation, the
ACS feels it's necessary to take a position in this instance
because HB 200 would have a direct impact on the court's
practices, on the administration of the ACS, on the ACS's
employees - Alaska's judges and justices - and on the Alaska
Judicial Council (AJC), which is both supported by the ACS and
depended upon by the ACS to help it maintain a judicial system
that has high-performing, professional, competent, neutral
judges. In response to another question, about whether a judge
or justice's personnel file is open to the public prior to a
judicial retention election, Ms. Meade explained that the AJC,
in fulfilling its constitutional and statutory duties, provides
the public with a lot of information about judges and justices
who are up for retention; however, some information the AJC
obtains about judges and justices either is, or might be,
considered confidential, and some claims by unhappy litigants,
for example, of a judge or justice's alleged wrongdoing are
completely unsubstantiated right from the outset.
MS. MEADE went on to note that members' packets contain
information about the AJC printed from the AJC's web site;
samples of information the AJC provides to the public via its
web site regarding judges and justices who are up for retention,
including a sample illustrating 14 links to the various surveys,
rate studies, and questionnaire responses that were considered
by the AJC for a particular judge; and, for four judges who
sought retention in past elections, copies of the information
that the AJC prepared and provided to the lieutenant governor
for inclusion in the election pamphlets. With regard to the
types of information provided in election pamphlets, she
explained that this information is provided in order to help the
voters understand more about the judges and justices that they
will be voting on. And at the bottom of each of the
aforementioned election-pamphlet samples, she pointed out, is
located the AJC's recommendation to the voters regarding whether
to vote "NO" or "YES" on the question of retaining the
particular judge.
1:22:45 PM
MS. MEADE said it is the ACS's view that those recommendations
are crucial: they help the voters understand the other
information that the AJC provides for inclusion in the election
pamphlet, thereby allowing the voters to make a more-informed
decision. Members' packets also contain copies of a couple of
typical retention-election notices that the AJC places in
various newspapers throughout the state; those [2 column by 5
inch] notices include the AJC's recommendation to the voters.
As required by the Alaska State Constitution, six appointed
members - chosen on the basis of geographic representation and
without regard to political affiliation - and the chief justice
of the Alaska Supreme Court - serving as ex officio member and
chair - comprise the Alaska Judicial Council (AJC); three of the
appointed members are attorneys chosen by the Board of Governors
of the Alaska Bar Association (ABA), the other three appointed
members are chosen from the public by the governor and confirmed
by the legislature, and the chief justice votes on both
judicial-retention issues and judicial-nomination issues but
only when the vote by the other six members is tied. That
happens rarely, though. Everything the AJC does is done by
consensus, she noted in conclusion, adding that many, many of
the AJC's votes are unanimous.
MS. MEADE, in response to a question, relayed that she would
research how often the chief justice has been called upon to
vote on judicial-retention issues, though statistics [going as
far back as 1984] regarding the AJC's judicial-nomination votes,
for example, illustrate that the chief justice has been called
upon to vote only about 6 percent of the time - only 67 times
out of 1116 total votes; furthermore, in only 14 instances was
it that the public members and the attorney members were divided
in their vote.
1:30:43 PM
WALTER L. CARPENETI, noting that he'd recently retired, relayed
that he would be speaking both to the court's position, as a
former chief justice of the Alaska Supreme Court, and to the
AJC's position, as a former chair of the AJC. Referring to the
Alaska State Constitution, he said:
I think [the AJC] ... has three main jobs. First, for
every judicial vacancy, it has to nominate two or more
applicants to the governor, who then makes the
decision - that's under Article IV, Section 5.
Secondly, with regard to retention or non-retention of
judges [and justices], the [AJC] ... shall evaluate
judicial performance and shall provide information to
the voters, and it may make recommendations on
retention/non-retention - that's under Article IV,
Section 9, which says, "other duties assigned by law",
and you, as the legislature, have assigned those
duties, mainly in Tittle 22 but also in Title 15. And
then third, [the AJC] ... has to conduct studies for
the improvement of the administration of justice and
report to the [Alaska] Supreme Court and to the
legislature on those studies. So that's the sort of
strict legal description.
MR. CARPENETI continued:
I was on [the AJC] ... as a lawyer, way back when,
before I became a judge, and then, for three years, as
the chief justice, and I'd like to give you what I
would think [of] as the real-life description of what
... [the AJC] does. It's an incredibly hardworking
group of citizens. In my time, every year, [the AJC]
... averaged over three solid weeks of meetings each
year, all over the state - not just Anchorage and
Fairbanks and Juneau and Palmer, but Bethel and
Dillingham and Kotzebue, many of those places more
than once - [and so] a lot of travel time [was]
involved. [The AJC] ... literally, every year,
reviews thousands of pages: applications; writing
samples; surveys of lawyers, police and probation
officers, jurors, court employees, social workers,
[and court-appointed special advocate (CASA)] workers
... in children's cases; [and] reports of the
independent judicial observer [from Alaska Judicial
Observers, Inc.]. [The AJC] ... looks at credit
reports; it looks at disciplinary proceedings - both
for sitting judges [and justices], and for lawyers
that want to become judges; it looks at criminal
records - hopefully that's not a big part of the
review; it obtains comments from opposing attorneys
and judges and litigants; it holds public hearings on
every applicant for judicial office and [on] every
judge up for retention; [and] it interviews all
applicants, and any sitting judge about whom questions
of fitness for office have been raised.
What this leads to is my conclusion that Alaska does
more to evaluate judicial performance than any
jurisdiction in the country. And I think that's
something that we all, and especially you, as the
legislature, should be proud of. These are, then,
volunteer citizens, unpaid, who exist for terms of six
years in a kind of what I think of as a perpetual jury
service: ... they're doing really important work,
they're rolling up their sleeves and digging in and
looking at the facts, and looking at the law, and
coming to conclusions. They're doing it with regard
to who sits on the bench and not with regard to the
outcomes of cases, but I think it's admirable work -
they deserve our respect and our thanks.
1:34:20 PM
MR. CARPENETI - noting that HB 200 provides an opportunity to
discuss the important issue of how the public can best be
informed about how Alaska's judges are performing and whether or
not they should be retained - relayed that there are four
reasons why the legislative decision that was made 38 years ago
to provide more information to the public should not be changed
[by the bill]. The first reason is that a judge's
accountability to the public would decrease [under the bill].
Currently the AJC serves the critical function of letting the
voters know when a judge is not performing the way he/she
should. A problem judge - although historically there haven't
been many such judges - is less likely to be voted off the bench
if the AJC is precluded from making a direct recommendation to
the voters. The public should know, very clearly, when a judge
is not fit for the bench, and the AJC is the entity set up by
the Alaska State Constitution and by the legislature to evaluate
persons' fitness for the bench in the first place, and their
continuing fitness once they've been appointed. Out of the 228
individual judicial-retention elections that have occurred since
1988, the AJC has recommended "NO" votes on three judges. Those
"NO" votes were recommended because of issues involving mental
health - an Anchorage judge who later admitted that his chronic
anxiety disorder made it impossible for him to function in his
judicial position; issues involving sexual harassment and other
serious problems - a Kenai judge who made really egregious
comments and suggestions to female court employees; and issues
involving unethical conduct - a Bethel judge who had improper
conduct with one side in a case. The Anchorage and Kenai judges
were removed by the voters, and the Bethel judge resigned.
MR. CARPENETI relayed that the second reason is that a judge's
accountability to the AJC would decrease [under the bill].
Currently, if complaints about a judge surface with enough time
for the AJC to bring the complaints to the attention of the
judge [before he/she becomes a problem judge], the AJC does so
and tries to work with the judge to encourage improvement, often
with mentors. If the AJC is precluded from making a direct
recommendation to the voters regarding retention, however, it
would remove the incentive for such a judge to work with the AJC
and comply with its performance-improvement plans. Such
incentive is present now because judges and justices facing
retention elections certainly want to avoid being the subject of
a "NO" recommendation. The AJC's authority to make such a
direct recommendation is a very useful tool for ensuring that
judges and justices are performing properly and fairly in the
eyes of the public.
1:37:15 PM
MR. CARPENETI said that the third reason is that the public's
knowledge about Alaska's judges and justices would decrease
[under the bill]. Currently the AJC provides a vast amount of
information about judges and justices seeking retention, along
with what he referred to as an easy-to-understand "bottom line"
regarding whether all of the information collected by the AJC
shows that the judge is fit to continue on the bench, or should
not be retained. Again, the AJC collects a lot of information:
polls from all of the aforementioned groups; surveys; public
testimony; transcripts of court proceedings; interviews with
litigants, other individuals, and the judges themselves; and
other information. Without a direct recommendation to the
voters by the AJC - the people who've actually dug into all the
information - the other information included in the election
pamphlets, although unquestionably voluminous, would be sterile,
difficult to understand, incomplete, and much less useful to the
voters. Survey results alone, while helpful, may still fail to
disclose inappropriate conduct; for example, two judges who'd
received a "NO" recommendation by the AJC and who were voted off
the bench received, by and large, acceptable survey ratings that
did not reflect the significant problems revealed during the
AJC's investigations. With full information and understanding,
the public can have a more accurate picture of a judge's
abilities and flaws; this helps the public, not just with
voting, but also with having confidence in the entire legal
system.
1:38:50 PM
MR. CARPENETI offered that the fourth reason is that the chance
of maintaining Alaska's [traditionally-high] standards of
excellence in the judiciary would decrease [under the bill].
Alaska has a very fine judiciary, and it would be more
difficult, he opined, to maintain such with the passage of
HB 200. The Alaska Judicial Council was established by the
Alaska State Constitution as an impartial body designed to
improve justice. One way to ensure such improvement is by
making recommendations regarding whether judges/justices ought
to be retained. The duty to recommend against the retention of
an unfit judge/justice is a duty that the AJC takes very
seriously. And although used rarely and sparely, this power to
make such "NO" recommendations is critical for purposes of
maintaining a high-quality judiciary. With regard to the AJC's
power to make a "YES" recommendation, he offered his belief that
it's important for voters to be informed of the results of all
of the AJC's information-gathering and analyses, important
particularly given that under the code of judicial conduct,
unlike candidates for typical political office, judges/justices
facing retention elections cannot campaign at all unless there
is already organized opposition to their retention, and even
then they are restricted in many ways, including in terms of
raising campaign funds. The AJC's simple and straight-forward
recommendations are the constitutional means by which to get
reliable information about judicial elections to the public.
MR. CARPENETI, in conclusion, opined that the original
legislative decision - to require the AJC to gather substantial
information and present it to the voters, and to empower the AJC
to make recommendations to the voters - was sound; to reverse
that decision would decrease judges and justices' accountability
to the public, decrease judges and justices' accountability to
the AJC, decrease the public's knowledge about how judges and
justices are performing, and decrease the chances of maintaining
Alaska's [traditionally-high] standards of excellence in the
judiciary.
1:41:40 PM
REPRESENTATIVE LEDOUX expressed concern that the AJC has been
straying from simply providing a "YES" or "NO" recommendation,
and has instead been using state funds to engage in what she
called a "political advertising campaign." She characterized
such as inappropriate.
MR. CARPENETI offered his understanding that there has been
agreement [by the AJC] not to do so in the future.
CHAIR KELLER concurred.
REPRESENTATIVE FOSTER surmised that that's the issue HB 200 is
intended to address.
MR. CARPENETI - in response to comments and questions related to
the bill's proposal to preclude the AJC from providing the
voters with a recommendation relating to a judge or justice
seeking retention - explained that the overall results of the
information gathered by the AJC are made available to the
public; that the statewide public hearings conducted by the AJC
provide the public with the opportunity to comment on the judges
and justices seeking retention; that the framers of the Alaska
State Constitution were of the consensus that lawyers themselves
would have the best idea of who amongst their brethren would be
qualified to sit on the bench; and that the AJC automatically
gives less weight to any comments [about judges and justices
seeking retention] that are provided anonymously. In
conclusion, he offered his belief that in conducting statewide
public hearings, disseminating information throughout the state,
and polling over a thousand people [who regularly address or are
connected with the court], the AJC tries really hard to hear
from everyone and does a good job of obtaining information from
Alaskans about the judges and justices seeking retention.
MR. CARPENETI, in response to further questions, indicated that
[since 1976], there have been approximately 344 individual
judicial-retention elections, with the AJC having provided a
total of eleven "NO" recommendations involving eight judges, and
with four of those judges having been retained [by the voters]
nonetheless.
REPRESENTATIVE GRUENBERG expressed concern that HB 200 might
interfere with the AJC's constitutional freedom-of-speech
rights.
2:00:32 PM
MICHAEL PAULEY, Lobbyist, Alaska Family Action, Inc., Alaska
Family Council, said the organization strongly supports HB 200,
believing that its proposed changes would preserve the original
intention of the framers of the Alaska State Constitution in
establishing judicial-retention elections. Referring to the
bill's proposal to preclude the Alaska Judicial Council (AJC)
from providing the voters with a recommendation relating to a
judge or justice seeking retention, and mentioning that the
organization he represents has taken an active role in judicial-
retention elections, he offered examples of how some other
states approach the issue of judicial evaluation/retention, and
opined that [money held by the AJC] should not be used to
provide a specific recommendation to the voters. Instead,
voters should decide whether to retain a particular judge or
justice on their own. Indicating a belief that informing the
voters that a particular judge or justice is unfit to continue
sitting on the bench serves no valid public purpose and thus the
AJC should be precluded under Article IX, Section 6, of the
Alaska State Constitution from spending public funds to do so,
Mr. Pauley shared his understanding of what occurred in 1975
when the AJC was initially given the statutory discretionary
authority to make a specific recommendation relating to a judge
or justice seeking retention, and paraphrased a quote from U.S.
Supreme Court Justice Scalia's dissenting opinion in Planned
Parenthood of Southeastern Pennsylvania v. Casey (91-744), 505
U.S. 833 (1992), to illustrate why he believes that voters
should be making judicial-retention decisions based solely on
whether they like a judge or justice's ruling in a particular
case. In conclusion, Mr. Pauley urged the committee to support
HB 200's proposed changes.
2:12:52 PM
ROBERT FLINT, Member, Board of Directors, Alaska Family Council,
relayed that he would be testifying in favor of HB 200, which he
characterized as removing both the Alaska Judicial Council (AJC)
and what he termed, "one-sided public funding" from judicial-
retention elections. Providing some historical information
related to the Alaska Constitutional Convention's drafting of
[Article IV of] the Alaska State Constitution, he offered his
belief that the goal back then was to give the voters the
ability to remove a judge or justice based on their perception
of his/her judicial philosophy, and therefore the AJC - which
evaluates judges and justices up for retention based on
different criteria - should not now be providing recommendations
to the voters in judicial-retention elections, and there should
instead be a return to how things were done prior to 1975 when
the AJC was initially given the aforementioned statutory
discretionary authority to provide a recommendation relating to
a judge or justice seeking retention. He offered his
understanding that that statutory change wasn't addressing any
known problems with Alaska's judicial-retention elections, and
that such elections become contested on the bases of judicial
philosophy and separation of powers, not on the bases by which
the AJC evaluates judges and justices. In conclusion, Mr. Flint
offered his belief that passage of HB 200 would ensure that the
AJC won't get involved in influencing judicial-retention
elections.
2:24:01 PM
LARRY COHN, Executive Director, Alaska Judicial Council (AJC) -
after providing some historical information and offering his
understanding that the concern HB 200 is intended to address
revolves around the advertising that the AJC engaged in for
purposes of the 2012 judicial-retention election - relayed that
although he has not yet had a chance to ask the AJC what its
position on HB 200 is, he is confident that the AJC would be
against the bill for the reasons outlined by Mr. Carpeneti and
would be taking an official position on the bill should it
proceed through the legislative process. With regard to the
concern HB 200 is intended to address, he surmised that it
stemmed from the AJC's having responded to a campaign that the
Alaska Family Council launched against the retention of Judge
Sen K. Tan. Mr. Cohn, too, noted that under the code of
judicial conduct, judges and justices facing retention elections
cannot campaign at all unless there is organized opposition to
their retention, adding that historically, such opposition has
been filed just days before an election, leaving judges and
justices with only a very limited opportunity to respond.
MR. COHN explained that since 1976, judges and justices have
faced organized opposition to their retention, and the AJC has
always responded and the legislature has always provided the AJC
with funding to advertise its judicial-retention recommendations
and has been aware of the AJC's responses to such opposition.
Now that the AJC understands the concern about responding to
organized opposition, however, the AJC will refrain from doing
so. It would be a different thing entirely, though, to deprive
the public of the AJC's judicial-retention recommendations,
because although the summarized information the AJC provides for
inclusion in election pamphlets is more information than any
other jurisdiction in the country provides, and is obtained via
a more transparent process than any other jurisdiction provides
for, it is still just a small amount of the total information
the AJC obtains about judges and justices seeking retention, and
wouldn't necessarily be reflective of problems such as sexually
harassing others, repeatedly engaging in unethical conduct, and
having mental health issues, for example, particularly when such
problems aren't evident in the courtroom itself. It is
therefore important that the voters have the benefit of the
process the AJC undergoes and its analyses relating to judges
and justices seeking retention.
2:31:49 PM
MR. COHN, in response to questions, reiterated that now that the
AJC is aware of the aforementioned concern, the AJC will refrain
from using its advertising funds to respond to organized
opposition to judges or justices seeking retention, and will
instead just leave it to the judges and justices themselves and
their supporters to respond to any such campaigns. Consider,
though, that when the AJC provides the voters with a "NO"
recommendation regarding a judge or justice seeking retention,
there is no other entity that can explain why such a
recommendation is being made - there is no other entity that
will advocate on behalf of the public against a judge or justice
who is no longer fit to serve on the bench. He posited that no
one would want to have to go before judge or justice that has
the kinds of problems over which the AJC has made "NO"
recommendations in the past after investigation, and expressed
the hope that the AJC won't be precluded from providing the
voters with such recommendations in the future. Again, the AJC
will no longer pay for advertising in response to organized
opposition to the retention of a particular judge or justice,
now that the AJC knows that doing so has raised concern with
members of the legislature.
MR. COHN, in response to further questions, indicated that he
himself might not object to a proposed statutory change if the
bill could be rewritten such that it would only preclude the AJC
from responding to organized opposition to a judge or justice
seeking retention, but it would depend on the exact wording used
in the bill.
REPRESENTATIVE LYNN opined that such a restriction would be
appropriate to put in statute.
2:36:16 PM
MR. COHN, in response to earlier questions regarding judicial-
retention elections, clarified that the AJC publishes all of the
details and demographics of its surveys and polls on its web
site. Furthermore, information from the public about a judge or
justice is solicited, investigated, and retained by the AJC
throughout the judge or justice's entire term; public hearings
are held all over the state and are advertised all over the
state; and reports submitted by [volunteer organizations]
trained in observing judicial performance are also published by
the AJC. He also clarified that the chief justice has never
been called upon to vote on judicial-retention issues because
the votes cast by the other six members of the AJC have never
been tied. In response to further questions, he explained that
the names of the respondents to the various polls/surveys the
AJC uses are kept confidential, as are the specific comments
provided by the respondents. Maintaining the anonymity of the
respondents insures that useful and candid information about
judges and justices seeking retention is provided to the AJC,
and comments aren't published because some of them are
completely untrue, and it wouldn't be fair to either the public
or to the judges/justices themselves to publish them. Also, the
AJC gives no weight at all to any comments that are provided
anonymously, unless those comments are substantiated, or
corroborated, or acknowledged by [the subject of the comments].
CHAIR KELLER, referring to the aforementioned copies of
retention-election notices that the AJC places in various
newspapers throughout the state, pointed out that those notices
inaccurately state that the AJC is required to provide the
voters with a recommendation regarding whether to retain a
particular judge or justice.
MR. COHN acknowledged that point. In response to a further
question, he explained that Alaska's judges and justices are not
evaluated on the basis of judicial philosophy, and indicated
that doing so would be problematic; the AJC wants judges and
justices who are fair and neutral and who will try their best to
follow the law, which won't always comport with their personal
beliefs or with that of the voters. [A judicial retention
election] is not a popularity contest, and judges and justices
ought to be making their civil- and criminal-case rulings
without regard to any judicial philosophy and without regard to
anyone's personal beliefs.
CHAIR KELLER relayed that HB 200 would be held over.
HB 54 - PLACEMENT OF A CHILD IN NEED OF AID
2:48:26 PM
CHAIR KELLER announced that the final order of business would be
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 54, "An Act relating to
the identification, location, and notification of specified
family members and family friends of a child who is in state
custody." [Before the committee was CSSSHB 54(HSS).]
2:49:08 PM
REPRESENTATIVE LES GARA, Alaska State Legislature, as one of the
joint prime sponsors of SSHB 54, in response to questions asked
during previous hearings on the bill, offered his understanding
that the Office of Children's Services (OCS) does not notify a
parent who's [already] had his/her parental rights terminated
[of the removal of the child from the child's home]; and that
the notifications provided by the OCS [regarding such removal]
don't include the physical address of the child anyway.
2:51:32 PM
CHRISTY LAWTON, Director, Central Office, Office of Children's
Services (OCS), Department of Health and Social Services (DHSS),
in response to a question, offered to research how federal law
addresses the issue of noncustodial parents convicted of
domestic violence (DV) crimes.
REPRESENTATIVE GRUENBERG referred to a handout included in
members' packets, and offered his understanding that 42 U.S.C.
671(a)(29) - federal law addressing removal-from-custody
notifications - contains the phrase, "subject to exceptions due
to family or domestic violence". He surmised, therefore, that
under that language, state law could provide for such an
exception.
REPRESENTATIVE GARA concurred, but pointed out that SSHB 45
doesn't address the issue of who is notified. Instead, the bill
merely provides that a supervisor must verify that [due
diligence was exercised].
2:55:22 PM
REPRESENTATIVE LYNN moved to report CSSSHB 54(HSS) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSSSHB 54(HSS) was
reported from the House Judiciary Standing Committee.
2:55:55 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:56 p.m.