02/20/1998 01:05 PM House JUD
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HOUSE JUDICIARY STANDING COMMITTEE February 20, 1998 1:05 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Brian Porter Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft Representative Ethan Berkowitz MEMBERS ABSENT All members present COMMITTEE CALENDAR * HOUSE JOINT RESOLUTION NO. 47 Proposing amendments to the Constitution of the State of Alaska relating to the nomination, selection, appointment, and public approval or rejection of justices of the supreme court and of judges of courts established by the legislature that have as an exclusive purpose the exercise of appellate jurisdiction over judicial acts and proceedings, and requiring legislative confirmation of those justices and judges and of the appointed members of the judicial council. - HEARD AND HELD HOUSE JOINT RESOLUTION NO. 4 Proposing amendments to the Constitution of the State of Alaska relating to terms of legislators. - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: HJR 47 SHORT TITLE: CONST AM: APPELLATE JUDGES SPONSOR(S): REPRESENTATIVES(S) COWDERY, Phillips, Green, Rokeberg, Ryan, Kohring Jrn-Date Jrn-Page Action 01/16/98 2060 (H) READ THE FIRST TIME - REFERRAL(S)01/16/98 2061 (H) JUDICIARY, FINANCE
01/20/98 2092 (H) COSPONSOR(S): GREEN, ROKEBERG, RYAN
01/28/98 2166 (H) COSPONSOR(S): KOHRING 02/20/98 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER REPRESENTATIVE JOHN COWDERY Alaska State Legislature Capitol Building, Room 416 Juneau, Alaska 99801 Telephone: (907) 465-3879 POSITION STATEMENT: Sponsor of HJR 47. MARCO PIGNALBERI, Legislative Assistant to Representative John Cowdery Capitol Building, Room 416 Juneau, Alaska 99801 Telephone: (907) 465-3879 POSITION STATEMENT: Answered questions on HJR 47. THOMAS B. STEWART, Judge (retired) Alaska Superior Court 925 Calhoun Avenue Juneau, Alaska 99801 Telephone: (907) 586-1220 POSITION STATEMENT: Testified in opposition to HJR 47 on own behalf. JOHN B. "JACK" COGHILL Ex-Lieutenant Governor General Delivery Nenana, Alaska 99760 Telephone: (907) 832-5422 POSITION STATEMENT: Testified on HJR 47. WILLIAM T. COTTON Executive Director Alaska Judicial Council 1029 West Third Avenue, Suite 201 Anchorage, Alaska 99501-1981 Telephone: (907) 279-2526 POSITION STATEMENT: Testified in opposition to HJR 47. TOM FINK 1350 West 23rd Anchorage, Alaska 99503 Telephone: (907) 279-3142 POSITION STATEMENT: Testified in support of HJR 47. WARREN MATTHEWS, Chief Justice Supreme Court Alaska Court System 303 K Street Anchorage, Alaska 99501-2084 Telephone: (907) 264-0618 POSITION STATEMENT: Testified about concerns regarding HJR 47. GERALD J. DES JARLAIS 2131 Sorbus Way Anchorage, Alaska 99508 Telephone: (907) 276-0274 POSITION STATEMENT: Testified in support of HJR 47. WILLIAM B. SCHENDEL, President-elect Alaska Bar Association P.O. Box 72137 Fairbanks, Alaska 99707 Telephone: (907) 456-1136 POSITION STATEMENT: Testified about concerns regarding HJR 47. GEORGE WILL, JR. P.O. Box 875208 Wasilla, Alaska 99687 Telephone: (907) 373-5316 POSITION STATEMENT: Testified in support of concept of HJR 47; offered suggestions. MARCI SCHMIDT Parents United for Custodial Justice 2040 Fishhook Road Wasilla, Alaska 99654 Telephone: (907) 357-3618 POSITION STATEMENT: Testified in support of HJR 47. MARK REGAN P.O. Box 535 Douglas, Alaska 99824 Telephone: (907) 364-2874 POSITION STATEMENT: Testified on HJR 47. PAMELA BICKFORD 16840 Tide View Drive Anchorage, Alaska 99516 Telephone: (907) 345-7731 POSITION STATEMENT: Testified in support of HJR 47; proposed term limits. KEN JACOBUS 425 G Street, Number 920 Anchorage, Alaska 99501 Telephone: (907) 277-3333 POSITION STATEMENT: Testified in support of HJR 47; read statements of support on behalf of Wayne Anthony Ross and Susan Fischetti. VICTOR FISCHER P.O. Box 201348 Anchorage, Alaska 99520 Telephone: (907) 276-7626 POSITION STATEMENT: Testified in opposition to HJR 47; also testified in opposition to HJR 4, which was scheduled but not heard. ACTION NARRATIVE TAPE 98-21, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 1:05 p.m. Members present at the call to order were Representatives Green, Bunde, Porter and James. Representative Croft joined the meeting immediately after the call to order, and Representatives Rokeberg and Berkowitz arrived at 1:06 p.m. and 1:10 p.m., respectively. HJR 47 - CONST AM: APPELLATE JUDGES [Also contains testimony by Victor Fischer on HJR 4.] Number 0046 CHAIRMAN GREEN announced the committee would hear HJR 47, proposing amendments to the Constitution of the State of Alaska relating to the nomination, selection, appointment, and public approval or rejection of justices of the supreme court and of judges of courts established by the legislature that have as an exclusive purpose the exercise of appellate jurisdiction over judicial acts and proceedings, and requiring legislative confirmation of those justices and judges and of the appointed members of the judicial council. Number 0052 REPRESENTATIVE JOHN COWDERY, sponsor, read from portions of the sponsor statement. He said HJR 47 provides for the legislative confirmation of judges appointed to the Alaska Supreme Court and to the court of appeals, by adding constitutional language referring to courts of record with appellate jurisdiction that are established by the legislature, and by requiring that all such appointments be presented for legislative confirmation. The resolution also provides for legislative confirmation of all members of the judicial council, which was created by the constitution in Article IV, Section 8. Currently it provides that the three public members appointed by the governor shall be confirmed by the legislature, but the three attorney members appointed by the Alaska Bar Association do not have to be confirmed. Number 0166 REPRESENTATIVE COWDERY told members the motivation for the constitutional amendment is to include the public in the process of appointing judges. The public has less input into the judicial branch than into the executive and legislative branches, which have elections and compulsory public input in their decision-making processes. Even the governor's cabinet appointees are subject to legislative confirmation, and perhaps 30 or 40 boards require it. Through legislative confirmation of judges, the public can participate in confirmation hearings, the judicial candidates can present their philosophical approach to the law, and the public will have a voice in their selection. Number 0241 REPRESENTATIVE COWDERY discussed two popular arguments against legislative confirmation of judges. First is that legislative confirmation politicizes the process. Representative Cowdery said that is true, and it is a positive strength of HJR 47. He described the legislature as a partisan political party, where Republican or Democratic labels are a shorthand for political values with which voters identify. He said legislative screening is a screening of values, and the public expects the governor, the legislators and all public officers, including judges, to have a value system that supports their own. "If politics is the process by which a potential judge's values are revealed to the public, then politics is a good thing," he added. REPRESENTATIVE COWDERY pointed out the existence of politics in the present process. Noting that the Alaska Bar Association uses secret ballots, he asked if bar elections and politics are somehow sacred, while legislative elections and politics are presumed somehow inferior. He indicated the only difference is that the legislature admits to its politics, while the bar association does not. This resolution allows the bar association and the judicial council to continue their current roles in the judicial system, but it adds a public element to the process. Number 0419 REPRESENTATIVE COWDERY told members the second popular argument against legislative confirmation is that the Alaska Bar Association is better-qualified than lay people or the legislature to evaluate judicial nominees; he believes that is false. Although the bar association may be in the best position to determine the legal ability of a lawyer, the public has a higher standard for judges than mere legal ability. REPRESENTATIVE COWDERY expressed the desire to know the moral fiber of judicial nominees, saying, "We don't attempt to prescribe it. We just want to know what he or she believes in. For example, does he believe in economic principles that support private property rights, gun control, publicly funded abortions? Would he be soft on repeat offenders, or would he be a 'hanging judge'? Does he believe that judges should strictly interpret laws based on legislative intent, or that they should apply law in the way they would prefer? There is more to selecting a judge than just his or her legal ability. The bar association is rightly concerned about a legal ability. A judge needs that. But the public needs the whole man measure, and only the legislature can highlight that." Number 0538 CHAIRMAN GREEN asked whether Representative Cowdery has a synopsis of what transpired during the Alaska Constitutional Convention relating to election of judges versus appointing them as is done currently. REPRESENTATIVE COWDERY replied, "Yes, we've got to remember that the constitution was in 1955. In fact, at that time there was few lawyers in the state. And at that time, even the judicial council, they talked in the convention of the judicial council possibly having the same authority for confirmation as the judicial committee or the legislature." He said the main discussion had been about electing judges, and he fully agreed it would politicize the system to elect people based on popularity, public relations campaigns or how good a selling job they had done. REPRESENTATIVE COWDERY indicated the constitutional convention had barely touched on confirmation by the legislature. He reported that his staff members have read the convention minutes several times and that he has read them two or three times. In addition, a constitutional convention member would testify that day. Representative Cowdery referred to the packet for HJR 47 and said this process is used in perhaps 11 or 12 states plus four territories and Washington, D.C. Although many states elect their judges, he would not favor that. All HJR 47 does is ask the people to vote. Number 0730 REPRESENTATIVE JEANNETTE JAMES said her understanding of the issue in this country relating to the three branches of government is that the judicial branch is to not be political. She commented that a person's politics cannot be separated from what they do but is ingrained. She suggested that might have been a driving factor to put judges and judicial matters in a different situation. REPRESENTATIVE JAMES expressed support for the public process, then pointed out a public process that exists: Judges get a trial period followed by a vote on whether to retain them. She commented that since age 21, she has voted "no" on every judge on the ballot, "only because I think there should be somebody that says no when you only are given one alternative." She suggested there is more public dissention regarding judges now, and she asked whether that is the reason for coming up with this idea. She concluded by saying on the face of it, she thinks the existing system is fine. Number 0841 REPRESENTATIVE COWDERY said that isn't the reason he had brought this up. Currently a judge is up for retention during the election following three years of service and may make decisions for six years that perhaps people don't agree with; he sees that retention election as after the fact. What he is hearing from the public, and the motivation behind HJR 47, is that the public perceives many court decisions as being out of sync with the public's wishes. REPRESENTATIVE COWDERY referred to the previous year's tort reform bill. He said there were two states where the legislature threw out the judges - or perhaps it had happened on two occasions - for frivolous lawsuits and "frivolous decisions on monetary." He said he doesn't know whether Alaska has an avenue to do something like that, but confirmation would bring out the character and philosophies of the candidates. Number 0977 REPRESENTATIVE JAMES mentioned the judicial confirmation process in Washington, D.C., and her experience with the confirmation process in this legislature on various appointments. Restating her belief that judges are already partisan because people's philosophies affect all parts of their lives, Representative James asked if putting judges up for legislative confirmation wouldn't make this even more partisan, no matter which party is in charge of the legislative process. REPRESENTATIVE COWDERY indicated he doesn't think the legislature is as partisan as a lawyer who will probably be appointed for a lifetime. Number 1059 REPRESENTATIVE CON BUNDE mentioned the need for great care in amending the constitution. He asked what is so broken here that needs fixing. He further asked, "If we'd had this system in place 10 or 15 years ago, how do you view that the judiciary would have changed today?" REPRESENTATIVE COWDERY suggested for a lawyer in private practice, they might have found out that person's philosophical views by determining who that lawyer's clients had been. Representative Cowdery agreed that the constitution is very sacred, and he believes the general public of Alaska thinks that as well. However, he would like them to vote on it. Number 1154 REPRESENTATIVE ERIC CROFT referred to Representative Cowdery's remark that the judicial branch has less public influence on it than the others have. He proposed that that is the way it was designed to be, and is the proper division. He asked what legislators would do if armed with knowledge of whether a candidate's clients had been the Sierra Club on the one hand, or oil companies on the other. Representative Croft asked, "Should we then, if we're stereotypical Democrats in the legislature and they have the majority, reject them because they've had oil company clients? And if a stereotypical Republican, reject them because they had Sierra Club clients?" Number 1207 REPRESENTATIVE COWDERY said it was never his intention to imply that. However, they could ask questions about background and history to try to determine people's philosophical views about issues that will probably come before them. Number 1235 REPRESENTATIVE CROFT noted that they try to pre-select candidates, so that they are qualified; the governor makes a decision; and the judge is up for election later. He asked: Now, if they add the legislature, how could they get more partisan than that? He added, "I guess with straight elections, but we've now involved every popular element, haven't we?" REPRESENTATIVE COWDERY answered that the judges certainly deal with every element, popular or unpopular. He suggested the legislature would enhance this process and the state would end up with better government. Number 1273 REPRESENTATIVE ETHAN BERKOWITZ said, "I don't know if you're aware, but in order to get past the judicial council screening, judges are evaluated on not only legal ability but their temperament, their fairness, their integrity and the appropriateness of their experience. And it would seem to me that given the breadth with which we evaluate judicial candidates, it would be a little hasty to change the process under the assumption that we were solely doing it on the criterion of legal ability." REPRESENTATIVE COWDERY replied that it is part of the process to evaluate everyone who is confirmed in the legislature on those values. Number 1333 REPRESENTATIVE BERKOWITZ pointed out a distinction: This is done in a formal vetting process, where questionnaires are sent out across the state to people they know or members of the bar association. A sheet asks whether a person knows the judicial candidate and requests an opinion, on a scale of 1 to 5, for example, of the candidate's legal ability, temperament, fairness, integrity and appropriateness of experience. This information is accumulated at the judicial council. If someone has a high enough grade, then - and only then - is that name forwarded. REPRESENTATIVE COWDERY asked who receives these questionnaires. REPRESENTATIVE BERKOWITZ said he believes law enforcement gets them, in addition to bar association members. As far as he understands, members of the public may also be permitted some input; he suggested someone from the judicial council could address that. He stated, "But to assume that someone is just selected ... without any public input, I think that's not quite an accurate representation of how the selection process occurs." Number 1406 REPRESENTATIVE NORMAN ROKEBERG referred to Section 3, beginning on page 2, line 30. He asked whether that new language is substantive in nature or merely linguistic, to be politically correct. Number 1469 MARCO PIGNALBERI, Legislative Assistant to Representative John Cowdery, agreed it doesn't read right but indicated his belief that it is not substantive. REPRESENTATIVE ROKEBERG suggested the less they jumble up the ballot if this moves forward, the better, saying this looks like another "drafter run amok" problem. He asked whether Version E is the correct version. CHAIRMAN GREEN said he makes an excellent point, then confirmed it is the right version. Number 1503 REPRESENTATIVE ROKEBERG asked whether Representative Cowdery had provided the Alaska Constitutional Convention minutes before him. REPRESENTATIVE COWDERY said yes. REPRESENTATIVE ROKEBERG mentioned the language used and the Missouri Plan. He referred to page 695 of those minutes and pointed out the difference between the meaning of "political correctness" then and now. He said he was particularly drawn to what former-Congressman Ralph Rivers said on the next-to-last page, that "the minute you adopt something like this, you are making a partisanship proposition out of it." He indicated Mr. Coghill had then said, "Well, this would be nonpartisan, obviously, because the highest official of our executive branch, the governor, would make this selection." REPRESENTATIVE ROKEBERG suggested history has shown in part that they failed to achieve their objective in terms of the political construct; our process elicits partisanship in spite of the judicial council's intercession, because they can send any number of names up. Representative Rokeberg said he'd like to get the history from witnesses from the judicial council, but recalled that historically governors have rejected all the names and told them to go back to square one and start again. REPRESENTATIVE COWDERY indicated his staff had just informed him that the convention minutes hadn't come from their office. Number 1649 MR. PIGNALBERI offered two other quotations from the constitutional convention, day 32, during the debate on the judge selection process. He stated, "Delegate McNealy, who later become president of the Senate, as you probably know, said that this appointment method will bring judges into politics more so than an election by the people. There was concern on all sides that judges remain free from the vortex of politics. ... Each side saw politics being least on the side they were for, and worse on the proposal they didn't favor. Delegate Smith, in the final parts of the debate that day, summed up by saying ...." REPRESENTATIVE CROFT asked whether he could reference the page numbers. MR. PIGNALBERI said he had a different format. He continued, "For Delegate Smith simply said, 'I would certainly not defend either the appointive nor the elective, on the grounds that it would take judgeship out of politics. I believe the political implication would be equal in either case.' ... That was the tenor of the debate. And again, it was ... mostly about election of judges versus the Missouri Plan. Legislative confirmation was mentioned barely, in passing." CHAIRMAN GREEN advised members there would be testimony by historians as well. Number 1715 REPRESENTATIVE BERKOWITZ referred the the portion of "Alaska's Constitution, A Citizen's Guide," provided in committee packets. He read from page 107, paragraph 3: "The independence of Alaska's courts is protected by various means. Most important is the method of selecting judges." On the next page, towards the bottom, he read: "Many states have embraced the judiciary reforms in the years since Alaska's constitution. The basic features of Article IV have proven workable and remain unaltered." Representative Berkowitz stated, "And this is the part that I think is really most telling, and why changing the constitution is of concern: 'Today, Alaska's judiciary system is recognized nationally as one of the best in the United States.'" Number 1745 MR. PIGNALBERI indicated that article had been amended four times. He said it is a good constitution, made better by some 28 amendments since statehood. Number 1762 REPRESENTATIVE CROFT asked what those four amendments did. MR. PIGNALBERI said he didn't think they were terribly significant, and he offered to provide that information by the end of the day. REPRESENTATIVE CROFT said that was his own recollection, that they were rather insignificant amendments to this section. MR. PIGNALBERI agreed this proposed amendment would be much more significant. Number 1772 REPRESENTATIVE JAMES said she hadn't made up her mind, but if there is any merit to this, it would be in opening it up for a hearing for the public to participate and ask questions, which she believes to be the important part of the legislative process. She agreed there is a difference from when the constitution was written, citing the attitude of today's public of wanting input. Number 1824 CHAIRMAN GREEN informed members that several distinguished testifiers were both on teleconference and in the audience. He first called upon Judge Stewart. THOMAS B. STEWART, Judge (retired), Alaska Superior Court, offered some history of the Missouri Plan, more properly named the merit system for the selection of judges. Probably the whole movement began with a famous speech by Roscoe Pound, a 35-year-old dean of the University of Nebraska Law School who later became a distinguished dean of the Harvard Law School. Dean Pound's address, "The Causes of Popular Dissatisfaction with the Administration of Justice," had launched a nationwide movement to address problems with the judiciary on both state and national levels; this came to a head in Missouri in the late 1930s. Number 1915 JUDGE STEWART explained that in Missouri there had been significant tampering with the judiciary by the legislature, which was controlled by machine bosses there. The public was severely disillusioned with that, and efforts to improve the system gelled into this scheme of having a merit system for the selection of judges. Rather than letting an individual announce a candidacy, or letting the governor choose his pals, a nonpartisan or bipartisan body would examine the qualifications of individuals to determine that indeed they were properly qualified to be judges. "And I don't need to repeat for you what the elements of that scheme are, because you know them from our constitutional provisions," Judge Stewart added. JUDGE STEWART told members that as secretary of the constitutional convention, he had been very close to the writing of the provisions on the judiciary in particular. New Jersey had had a terrible court system, and in their constitutional convention of 1946, they revamped it completely and established virtually a model system. Subsequently, Arthur T. Vanderbilt (ph), New Jersey's distinguished chief justice, wrote a large volume, "The Administration of Justice"; Sheldon Elliot (ph), his right hand in the drafting of that work and the executive director of the Institute for Judicial Administration in New York City, became the principal consultant to Alaska's convention on this topic. Mr. Elliot sat with the delegates over a period of time, especially in December of 1955, and helped them to arrive at what they did. Number 2027 JUDGE STEWART suggested it is instructive to look at the territorial history. All of the judges were highly partisan political appointments during the territorial years, appointed by the President of the United States and chosen because of political connections with whoever was President at the time. Often they had never been to Alaska and were simply sent here. For example, the last territorial judge in Juneau, Raymond Kelly (ph) - who Judge Stewart believes was a good judge - had been the president of the American Legion and an unsuccessful candidate for governor of Michigan; President Eisenhower had appointed him as a political favor, and he came to Alaska never having previously been, to Judge Stewart's knowledge, west of Chicago. Judge Stewart concluded that the delegates were familiar with a partisan political scheme for the appointment of judges, which is why they came to this plan. Number 2079 JUDGE STEWART said he appreciates the sponsor's remarks about examining the philosophy of judges. However, under a confirmation process that would quickly run afoul of the Code of Judicial Conduct. Canon 7(B)(1)(c) of that code provides that a candidate for judicial office, which expressly includes candidates under a merit system for the selection of judges, should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office, and should not announce his views on disputed legal or political issues. JUDGE STEWART told members, "So it would be quite improper for a candidate for judicial office to say to a legislative committee, 'These are my views on subsistence, on abortion, on penalty, on punishment.' He is ethically barred from giving that kind of a response." Judge Stewart expressed great concern about a process that would involve a candidate for judicial office beyond a promise of faithful and impartial performance of the duties. JUDGE STEWART explained, "There's good reason for that. If a person pronounces upon an issue before he assumes judicial office, he or she is pre-judging that issue. And it's a judge's job to listen impartially to both sides. You don't know ... in what form an issue is going to come before a court. Take the issue of abortion. You don't know what fact circumstances are going to be involved. And a judge has to apply the law as it's given to him, the decisions of the United States Supreme Court, the decisions ... which can affect, for example, what appellate judges in Alaska must do. So the canon derives from a long history of trying to keep judges from committing themselves before they hear the arguments and the facts in the cases that are before them. I would be very concerned about that." Number 2204 JUDGE STEWART remarked that inevitably, if candidates are subject to confirmation, they will become involved in the partisan political process; he had gone through it when appointed as a trial judge, but the same applies to appellate judges. There will be competing personalities, and they will look to their friends in the legislature for confirmation. "I think our court system has been remarkably free of that kind of problem," he added. JUDGE STEWART told members that as the presiding judge in Juneau, he sat on some very sensitive political cases. For example, the House had had a Democratic majority, but some Democrats defected and the majority changed during the course of the session. The minority brought suit in Judge Stewart's court to judge between the minority and the majority on changing the leadership of that body. JUDGE STEWART explained, "I had a personal political history. I was a Democratic party leader for many years, Southeastern Alaska. From the day that I entered into court service, both as administrative director in 1961 and thereafter, I have never attended a partisan political meeting, I have never contributed money ... to a party, I've tried to keep totally away from any partisan political involvement. Under this measure, I don't see how a judge could avoid that. I would be deeply concerned." JUDGE STEWART told members that in that particular case, he thinks he judged fairly. He stated, "I said, 'The court has no business judging this issue, this is an internal legislative issue, I shall not touch it, you make your own decisions as best you can.' And I think that's what a judge has to do: He has to look impartially at all the circumstances before him and avoid partisan political concerns." Number 2306 CHAIRMAN GREEN commented, "Well, impartially, I certainly agree with your decision." JUDGE STEWART said he doesn't attempt to rejudge. He told an anecdote about a case he thought he had decided correctly, but which the supreme court had reversed. However, the supreme court has a contract with Duke University Law School, which publishes a law review in which professors and students critique supreme court decisions. In their critique of that particular decision, they wrote that the trial judge was right. Judge Stewart pointed out that it didn't change the law, of course. Number 2341 JUDGE STEWART noted that our legal system is described as an adversary system. Judges make decisions based on presentations by two opposing sides, which presumably summon all the law and facts that enable the judge to make an impartial decision. Judge Stewart cautioned that if they put a judge in the position of pronouncing on his views before he takes office, the judge is no longer impartial. He said it is a very dangerous step, in his view. JUDGE STEWART noted that he had served in both the House and in the Senate, then told members if he were in their shoes, he wouldn't venture to amend the constitution in this regard without making a much more elaborate investigation. He suggested, for example, talking to people from the American Judicature Society, of which he has been a member for most of his professional life. That society concerns itself with the selection of judges, working under five principles that include removing politics from judicial selection and promoting merit-based systems for choosing judges. Judge Stewart recommended that legislators listen to a leader in this field, from that society, about the impact on the merit system with this kind of a change. JUDGE STEWART told members, "It's not that I don't agree with the confirmation process. I think that public officers do need to be subject to it. The bar association would cut my throat, but I don't have any problem with your confirming the bar selections. But I do have a problem with your confirming judges - applicants for judges." Number 2445 JUDGE STEWART, on behalf of someone from the Juneau Bar Association who had left to go to court, offered a copy of "Juneau Bar Association Resolution No. 98-01" in opposition to HJR 47; he noted that he himself is a member. TAPE 98-21, SIDE B Number 0006 REPRESENTATIVE BUNDE first referred to Representative James' point, saying we're all captive of our experience and it will affect us in some way, even if there is an overreaction or opposite reaction. He said granted that, the judge's job is to interpret the law or the arguments based on the law. A judge whose personal philosophy intrudes on that would be in violation of judicial canons. Representative Bunde asked, "Has it happened in Alaska where judges have strayed that far and been reprimanded or even removed?" JUDGE STEWART replied that some judges have been removed under the provisions for retention; however, in his own judgment, at least one procedure was not fair; that involved removal of a supreme court justice in 1964. He indicated he doesn't believe any judge has been removed on the basis Representative Bunde mentioned. Judge Stewart then offered his own judicial philosophy. He had attended Yale Law School, part of the so-called school of legal realism, which is a philosophy that says a judge cannot totally divorce himself or herself from his or her background, but must do the best possible to make the judgment on the basis of the arguments and the facts of that case. Number 0089 REPRESENTATIVE BUNDE acknowledged that is how it is supposed to work, but asked what happens if a judge slips through the process and strays too far into personal philosophy in interpretation. JUDGE STEWART pointed out that trial decisions are subject to review by the appellate process. Appellate decisions in turn are subject to review if they tread on constitutional issues because the United States Supreme Court can review the decisions of Alaska's appellate court if there seems to have been some impropriety in that regard. "But I guess an ultimate appeal is only upstairs," he added. Number 0127 REPRESENTATIVE BRIAN PORTER thanked Judge Stewart for his testimony and stated, "I am inclined at this time to say I agree with most everything that you've said, which perhaps is a little different than the last time we were discussing a piece of legislation. I'm happy for that. And I think that's somewhat typical of why I have a problem with this piece of legislation." REPRESENTATIVE PORTER recalled a much-publicized confirmation process for the U.S. Supreme Court a couple of years ago, which he had thought was particularly distasteful. He said, "And I would have a concern that this could develop from ours. But I guess to be fair, let me ask: The process that we have now provides the governor the opportunity to select between two or three or more folks submitted by the judicial council. Is it not unusual for the governor to have interviews with those candidates and ask them philosophical questions?" Number 0166 JUDGE STEWART answered that it is not at all unusual. However, under this plan, the governor has nothing like a free hand. He can only deal with the people that have survived this screening by the judicial council, and he can add no others. Judge Stewart said to his knowledge, in no case has a governor been successful in asking the council to submit additional names. REPRESENTATIVE PORTER said he thought there had been an attempt. [Other members commented simultaneously about additional attempts.] Number 0189 JUDGE STEWART told members he would speak strongly against this amendment before the electorate, if they considered it. He cautioned that were it to pass, however, there may be unintended consequences. The council now does a very careful, thorough job of examining the qualifications of candidates, coming up with what the council finds to be the best-qualified candidates. "And if the legislature fails to accept that, you're going to get a lesser- qualified candidate," he concluded. Number 0223 REPRESENTATIVE JAMES pointed out that in Alaska's constitution, only the legislature can put a constitutional amendment out to the people. She suggested that indicates legislators have some responsibility and should not take lightly putting constitutional amendments out there. She reminded members that the legislature supposedly has all the information, which the public might not. In addition, ruling by the masses is not necessarily in the best interest. She requested a response. JUDGE STEWART said, "If you look back to the formation of American government in the late 1700s, it's clear that we do not have a pure democracy. We are a republican form of government, and our Founding Fathers of the American constitution saw that it would be impossible to have the entire electorate consider the details. And the job is delegated to the elected representatives. This is the kind of an issue which it seems to me must be determined here, in the legislature." JUDGE STEWART explained that it is a very dangerous issue to send out to the public at large, because there is no adequate forum. It isn't lack of intelligence of the public, but lack of an opportunity to consider all that comes to bear on the issues. Those can be debated adequately in a deliberative body like this one, but if they send it out to the voters, it will not get an adequate hearing. The newspapers and television stations can't give it sufficient coverage. Many people don't read those or look at those, and they decide these kinds of issues on shallow grounds, without looking at the ramifications that are there. Judge Stewart told committee members, "And it seems to me that the decision is yours to make whether this is a wise thing. And if I have any influence on you, I suggest that it is not." REPRESENTATIVE JAMES agreed it is those unintended consequences that they need to consider. Number 0342 REPRESENTATIVE ROKEBERG asked whether this doesn't just mirror the federal system but then add the judicial council. He questioned whether a witness before a congressional committee would be ethically barred from indicating his philosophy or statement, when in fact all the federal judges and U.S. Supreme Court candidates go through that grilling before Congress. JUDGE STEWART pointed out that the congressional system is very different. It is not a merit system for the selection of judges but a partisan political appointment process in which the sitting President chooses the candidate. Although to some extent the American Bar Association is involved and makes recommendations to the President on candidates for judicial offices, it is in no way equivalent to our merit system. Judge Stewart commented that what happens in the Congress sometimes verges on being a circus. He cited the example of Robert Bork's confirmation hearing and said he doesn't want to see our judges put through that. CHAIRMAN GREEN thanked Judge Stewart, adding that his insight had been duly noted by all the members. He then called on Jack Coghill, ex-lieutenant governor and former legislator. Number 0449 JOHN B. "JACK" COGHILL, Ex-Lieutenant Governor, testified via teleconference from Fairbanks, saying his approach to HJR 47 is a little different from Judge Stewart's. He stated, "I come from the side that the public really needs to know." Noting that he had been part of the Alaska Constitutional Convention, he said although he had agreed on the need to ensure it was kept out of the political process, he doesn't think they had really understood the need to ensure that our whole third-branch system has a more public process. He said 20/20 hindsight shows that too much hidden power lies within the judicial council. EX-LIEUTENANT GOVERNOR COGHILL stated, "I think that if you take a look at the background of most of our trial judges that you'll find that most of them have risen to judgeship through the buddy system. We have inside attorneys or public attorneys. I think one of the things that we failed to do in the constitutional convention was to make sure that there was a private process and practice with attorneys before they elevated themselves to judgeships ... and through the judicial council. And I think that the provision that strikes me the most about House Joint Resolution Number 47 is the process to which we have appointments to the judicial council, and that's where Judge Stewart and I agree." Number 0578 EX-LIEUTENANT GOVERNOR COGHILL suggested that legislative oversight is healthy, placing the three branches more closely into the public sector rather than into the political arena. He stated, "We already have oversight in the legislative process with the budget. We have oversight - if you want to say oversight - of the rule- making process with the supreme court, if you can muster [a] two- thirds' vote within the legislature of both houses, and you know as well as I do that that's almost impossible." He suggested the need to bring those three branches of government closer together with public awareness and, importantly, public input. EX-LIEUTENANT GOVERNOR COGHILL said the rule-making process given to the supreme court is conceived now more towards the betterment of attorneys and their fees, and not to the "speedy resolve to an issue that the court or that the constitution guarantees." He indicated the public perceives that the only winners in court are the attorneys, who receive large fees and play attorney games until the clients are worn down and willing to stipulate. Number 0678 EX-LIEUTENANT GOVERNOR COGHILL suggested the Alaska Supreme Court would welcome the change "as putting the whole judicial system more into the public review process, rather than making it an Ivy- League-type, attorney-controlled, basically, system." He stated, "And I think that when we wrote the constitution that we were trying to debate the issue, 'Shall we have a merit system program, a Missouri Plan, or shall we have an elective process where the (indisc.) and the political process gets a person to garner most of his money from either one special group or another?'" EX-LIEUTENANT GOVERNOR COGHILL noted that he isn't an expert on this but had read the journals the previous day. He stated his belief in the Jeffersonian principle that citizen review of the constitution should be the right of each generation; he said that is why they put in the constitution that review should be made every ten years, not by sections or by articles, but as a whole. He concluded, "'Shall there be a constitutional convention?' And you open up a Pandora box, and you don't know what you're going to have. But I think this resolution puts us closer to that goal, that if there are items that are of interest to the public - not necessarily, now, to the interests of the attorneys or the interests of the judicial system - but to the interests of the general public -- and the general public, Mr. Chairman, is very frustrated with our judicial system today." Number 0732 REPRESENTATIVE BERKOWITZ asked what role or interest Mr. Coghill thinks the public has in the impartiality of the judiciary. EX-LIEUTENANT GOVERNOR COGHILL suggested someone who isn't in the system won't know whether the system is broken. He mentioned the last two years of his own legislative experience and the juvenile or family court review process; he said the people in that system know that it is broken, and once they get into it, they can't get out. He said it is the rule-making process that comes down from the supreme court that created that attitude. He concluded, "And what I'm saying ... is that we need to have where there's a forum where people can vent their frustration as to the system, and to give you folks, that are the legislative or the policy-making process of our system, the interest that's necessary to change it." Number 0805 REPRESENTATIVE COWDERY asked whether Mr. Coghill views HJR 47 as somehow diminishing the merit system of selection. EX-LIEUTENANT GOVERNOR COGHILL said he doesn't believe it does at all, because the original process is to go through the judicial council, which would be reviewed by the citizens' elected representatives. He stated, "You know, I'm a constitutionalist. I believe that there's basically three branches of government. There's the administrative branch, which administers the laws that are presented ... by the legislature. You're the direct link between government and the people that voted for you. And then there's the judicial system. And the judicial system is getting to the point where that by a rule-making process, they get into the point where that they're making law, instead of the legislature making that law policy." EX-LIEUTENANT GOVERNOR COGHILL continued, "So, I believe that the merit system is not damaged at all by this process, because first of all, the nominations go through the judicial council, which has your review, and then it comes before you to ask the basic questions of policy. And I disagree with ... Judge Stewart about the fact that -- that you talk about philosophy. Well, are you conservative? Are you constitutionalists? ... Are you liberal? Are you a government-control-type person? I think ... the public has the right to know those things (indisc.) of your judicial system." Number 0904 REPRESENTATIVE ROKEBERG referred to Section 3 and thanked the committee counsel [Kevin Jardell] for clarifying that meaning for him. He said there is a substantive change that would provide that attorney members of the judicial council would also be subject to confirmation, and that is the distinction. Number 0944 WILLIAM T. COTTON, Executive Director, Alaska Judicial Council, came forward to testify in opposition to HJR 47. He explained that the council is a small independent agency created by the state constitution in the judicial branch of government. Mr. Cotton stated, "The council has directed me to urge you to vote against this proposed amendment, HJR 47." MR. COTTON provided a brief background. The council has duties assigned by law in three areas. One area, research into the administration, is not relevant here. A second area is to evaluate the performance of judges and make information available to the public. Mr. Cotton told members, "We do more in Alaska in that regard than is done anywhere else in the country and, indeed, anywhere else in the world. The judicial council surveys all attorneys in Alaska, all police officers, probation officers, all jurors who appeared before that judge in the last term, all court employees. This year we're adding social workers, GALs - guardian ad litems - and CASA workers [court-appointed special advocates]. In other words, in those child custody cases, we wanted to get some more input in that area. It is a great concern, of course, these days. We ask ... for the 'court watch' report, which is a group of citizens organized by the Victims for Justice, and the summary of that report is included in the council's report to the voters also." MR. COTTON told members there are also statewide public hearings. The great majority of information, including review of appellate records, peremptory challenges, credit reports, criminal history reports, and much more, is available to the public. There is a summary page in the voter pamphlet on each judge. The last time, almost all that information was available in an almost-two-inch- thick booklet. Furthermore, it is all out on the Internet, as it will be again this year. Mr. Cotton emphasized the thoroughness of the review process, then added, "And you, as a voter, can find out more information about your judges in Alaska than anywhere else in the country." Number 1060 MR. COTTON advised members that the third area of focus for the council is the screening of judicial applicants to try to find the best-qualified applicants. The council's thoroughly screening includes holding a public hearing, always at least in the location where the vacancy is. It is based on honesty; fairness, a great concern; intelligence; temperament; whether they treat people with respect; experience; willingness to work; whether they can control a courtroom and whether they are committed to the public interest. MR. COTTON pointed out that certainly the council looks at where the person comes from; for example, they don't want a public defender who can only see that side of the fence, and the same is true for people with experience in other areas. However, where people come from doesn't necessarily reveal where they will end up. Mr. Cotton recalled looking at police officer evaluations of sitting judges a few years ago, when there was a similar question. Interestingly, those police officers had rated the former public defenders marginally better than the former prosecutors, and they had said that those who had gotten through the judicial council and been appointed by the governor were, by and large, doing a good job, although there were concerns with individuals here and there, of course. MR. COTTON said the bottom line is that the council believes Alaska has a system that works well, that delicately balances the need for judicial independence with the need for public accountability. He stated, "Our system in Alaska is respected nationally. I regularly receive calls from other states about how we do things in Alaska. But it's more than that. I recently got a call from the former director of the New Jersey court system, who has been hired by the feds to give advice to the Republic of Georgia; and they're setting up a judicial council there, and they asked me to come to the East Coast and were going to pay for my trip to talk to them about how we do things in Alaska. So, not only other states look to Alaska, but actually other countries." Mr. Cotton indicated Alaska is a model for some of these Eastern countries emerging from communism. Number 1203 MR. COTTON stated, "Judge Stewart covered the constitutional convention very well, and I won't repeat what he said, other than the constitutional convention did look at legislative confirmation of judges. They looked at the New Jersey Plan, which does have legislative confirmation, and rejected it. They also specifically discussed and rejected legislative confirmation of attorney members of the council. That vote was 49 to 4; Jack Coghill was one of the 4. But it was 49 to 4, and it was discussed." Mr. Cotton urged members to look at those minutes. He suggested they would be impressed by the thoughtfulness and thoroughness of the discussion. Number 1248 MR. COTTON referred to the federal system, in which the President basically appoints who he wants to; once confirmed, that person serves for life. In such a system, there must be some kind of check on the President. Mr. Cotton explained, "I think in that system, you need legislative confirmation. But even under that system, things sometimes do go wrong, and sometimes those hearings become much of a circus." He referred to earlier mention of one of President Reagan's candidates, Bork, and said the term "being Borked" had almost come into the popular understanding. MR. COTTON pointed out that Alaska has no appointments for life, and there are retention elections in which the public votes. In addition, the judicial council is a check on the governor's appointive powers, which the governors aren't always happy about. Mr. Cotton mentioned examples: "A little over a year ago, Governor Knowles asked the council to send in more names. He asked his attorney general to call the council members and lobby them. The council respectively declined to submit more names. A similar thing happened with Governor Hickel several years ago, and I believe it was quite a similar thing happened with, I believe it was, Governor Sheffield, before my time with the council." MR. COTTON told members the council takes its duties very seriously. It is not a system that pits non-attorney members against attorney members. He said, "I asked my staff to take a look at the votes since 1987, and there were 399 votes on applicants. Out of those 399, there were 8 in which the attorneys had voted against the non-attorneys. Actually, in 2 of those 8, there was only one non-attorney there. But even in those 8 out of 399, the chief justice sided with the non-attorneys half the time. So, I think that tells you something about how the council takes its job seriously and works together." Number 1371 MR. COTTON noted that the council's thorough investigation takes about six months, from the time the council begins to solicit applicants until the governor appoints. That is unfortunate, because applicants, particularly those in private practice, have to almost put their lives on hold for that time period, which is very difficult. However, this legislation could possibly even double that time, depending on what time of year the vacancy came open. If it was January, for example, and the governor's appointment didn't come until after the session, that person would have to wait until the next year. Mr. Cotton stated, "I think that would be particularly difficult for the private-practice practitioners, and we need some of those people on our appellate courts." MR. COTTON concluded by saying he and the council, both attorney members and non-attorney members, believe that Alaska has a system that works pretty well, acknowledging that nothing designed by man is perfect. Number 1441 CHAIRMAN GREEN commented, "I know people that vote against judges every time the election process comes up, in spite of the booklet that you provide, which is, I think, exceptional. And yet, judges seem to be almost, within a few percentage points, overwhelmingly retained." He asked whether Mr. Cotton believes that indicates an apathetic voting group or that the caliber of those selected is so high that there is no animosity. MR. COTTON replied, "I think there's several reasons. I think the council does do a good job in selection, and that helps us with retention. I think that the fact that we do all these evaluations on judges - I think that we ask the cops, the attorneys, the jurors - keeps them, to a certain degree, shall I say honest? I don't mean honest ... as far as dishonest, but keeps them responsive to the people who are in front of them. And then the council has occasionally recommended against judges, and the public has occasionally followed those recommendations. The last situation, you will occasionally see judges who decide to retire right as the council is doing their evaluation. Sometimes it has nothing to do with it, sometimes it clearly has something to do with [it], and sometimes you're not sure. But that sometimes happens also." Number 1518 REPRESENTATIVE BUNDE asked Mr. Cotton to address Representative Cowdery's concerns, noting that there are checks and balances where the voters get to confirm judges. However, it may occur as much as six years into the judge's service. MR. COTTON explained, "It wouldn't ever be quite as much as six years, although it could get close to that. I believe that the law provides that an appellate court judge will be on the ballot at the first election at least three years after he was appointed. So, it will on average, let's say, be about four years. The reason that you have that time period there is to give some time to evaluate the performance as a judge. That ... time period is certainly arguable, but that's the basic reason behind it." Number 1574 REPRESENTATIVE BUNDE asked whether Mr. Cotton believes that system works now and there is no reason to shorten the time period. MR. COTTON replied that the law used to be that for district court judges it was only two years. He stated, "And that was a problem. It was too short, because we start our evaluation actually a year before the election. So we were trying to evaluate someone who had been on the bench for, in some cases, just barely a year. And we really weren't able to get very good information about how they were doing as a judge .... So I think the three-year period is probably a pretty good one. Actually, the legislature, I believe, changed the period for district court judges to three years now ...." Number 1615 REPRESENTATIVE CROFT posed a hypothetical situation where two names are sent up. He noted that currently a governor might not like it but would eventually have to pick one or the other. Representative Croft asked, "If they pick one and the legislature refuses to confirm, what do we do then? Is it the other one? Is it a new process?" He asked to hear first from the sponsor about his intent, and then from the judicial council on how that would work. Number 1662 REPRESENTATIVE COWDERY responded, "My intent was, I don't think all - as we said earlier here, I think the gentleman said - all people that are forwarded are always selected. Sometimes you have to go back and pick somebody -- that has never happened?" MR. COTTON replied that it had never happened to his knowledge, although in three cases the governor had asked. REPRESENTATIVE COWDERY suggested the merit system would still exist, saying he doesn't see where this impacts that whatsoever. He asked Representative Croft to restate the rest of the question. REPRESENTATIVE CROFT asked, "If we reject number one, is it automatically number two that gets sent up? Or do we send them on a new hunt?" REPRESENTATIVE COWDERY said he supposed it would be whatever exists now. He added that he hadn't thought that out. REPRESENTATIVE CROFT suggested that if the second candidate were rejected, clearly they would need to go on a new hunt for the third-best-qualified, fourth-best-qualified and fifth-best- qualified people who had applied. However, he didn't know what would happen if the legislature rejected the first candidate. REPRESENTATIVE COWDERY replied that this resolution is just a vote of the people, and he restated that he hadn't thought of that issue. He added, "And I don't know if that's appropriate in this." CHAIRMAN GREEN noted that it has yet to be determined. Number 1785 REPRESENTATIVE PORTER said this would provide confirmation for the original appointment of appellate judges. All of that track record and information is not available to the public on the Internet at that time. He asked, "What information is available to the public on the folks that would be sent up to the governor for original appointment to an appellate position?" MR. COTTON answered that the council collects as much information as it can about applicants who apply to appellate and other positions. Most of that information is available to the public, although not all is. Mr. Cotton explained, "We do send letters to references, personal, professional references and also every place this person worked. We also, of course, collect the information about their schooling. Those letters are not available to the public. We promise those people confidentiality and in fact say we're not going to show them to the applicant, because sometimes even the people that the applicant picks to give them references don't give them very good references. And obviously we want their honest opinions, and that can be very valuable information." MR. COTTON reported that the council surveys all the attorneys in the state, to determine how the attorneys who deal with them rank them as far as overall temperament, legal ability, professional experience, and a couple of other things. Those survey results are available to the public, and the council puts it out in a press release. They also review bar disciplinary records, and they get access to confidential bar files containing how many fee arbitrations a person has been in, because if there have been a lot of fee arbitrations and bar complaints, even if they were thrown out, it shows that maybe they aren't communicating well with their clients. That information would not be available to the public. Mr. Cotton indicated that credit checks and criminal history checks would not be available, either, noting that there is some controversy there. Number 2052 TOM FINK testified via teleconference from Girdwood, stating support for HJR 47. Noting that Alaska has operated under another system for 40 years, he suggested it needs some improvement. He believes additional review by the legislature would bring out more background about appointees. He said our system isn't terrible, but as far as he is concerned we have too many judges who literally make law rather than interpret it. He stated, "I don't think we're any better or any worse than the federal, and the federal has a confirmation process, which this is recommending." He suggested that because there would still be the judicial council, there would still be the merit recommendation. Mr. Fink said a good number of people feel unhappy with the judicial system. If the legislature confirmed, it would take a lot of that pressure off. And whether or not it was improved, he thinks the public would feel that the judges were selected in a more representative fashion. MR. FINK referred to the current retention election and suggested that if someone doesn't run against a person, no one will say anything bad about that person. "If there are two people running, you get a much better chance of finding out the good and bad of each of the people," he said. "So the election we have is better than nothing, but it's not like a true election." Number 2133 WARREN MATTHEWS, Chief Justice, Supreme Court, Alaska Court System, came forward to testify, saying their concerns are threefold: They are afraid legislative confirmation will politicize the process; they are very concerned about the potential for delay and stalemate inherent in the system proposed; and they are concerned about degradation of the merit selection system. He offered to address those concerns in order. CHIEF JUSTICE MATTHEWS discussed politicization, saying in the federal analogy, whenever the President is of one party and the Senate is of another, there is a potential for quite a bit of controversy. He cited examples, then noted that in Alaska, that split authority has recently been more the rule than the exception. He pointed out that typically, voting in controversial cases goes down party lines. For example, in the federal arena, every Republican voted for Clarence Thomas, whereas every Democrat voted against him; and although he didn't know that Bork's confirmation ever went to a vote, the alignment went that way. CHIEF JUSTICE MATTHEWS expressed concern that when there is voting like that, the success of the justice who is then confirmed is seen as somehow obliged to the party that put him there; that party would have championed his cause, and the other party that opposed him would be his foe. Chief Justice Matthews raised the question of what is wrong with having a justice, or maybe a majority of justices, who have gone through that process, then answered that the court has cases with political overtones. CHIEF JUSTICE MATTHEWS cited examples. Every reapportionment time, there are reapportionment cases with political overtones. The judges must be able to decide them impartially, and their judgment must be impartial both in fact and in appearance. Chief Justice Matthews asked whether they can make judgments like that if they have a process like this. He told members that in addition, there are cases where the allocation of authority between the legislative and executive branches is in question. He mentioned a recent example involving the Alaska Public Utilities Commission. TAPE 98-22, SIDE A Number 0001 CHIEF JUSTICE MATTHEWS reported that occasionally, even internal legislative disputes come before the court, if they involve constitutional questions. He cautioned that there is a danger of actually creating kind of a partisanship with this process, and there is an even greater danger of creating an appearance of partisanship. Neither is valuable, and both are to be avoided. Number 0061 CHIEF JUSTICE MATTHEWS discussed the second area of concern, delay and the potential for stalemate. He himself was appointed in late May of 1977; if this system had been in place, there would have been no chance of legislative confirmation until the following session, more than seven months if all went well. A person appointed out of private practice would have to mark time for quite a while. CHIEF JUSTICE MATTHEWS explained that the big problem, however, would be damage to the court. Their operation on the supreme court is seriously impacted when there are gaps in membership. Chief Justice Matthews offered to show statistics that theirs was the nation's most stable court during the 1980s, with five people together for more than ten years. That is nearly unprecedented, and they got pretty efficient; their time of disposition got down to an average of five months after argument that they published the opinion, which he believes was pretty good for them or any court. Number 0186 CHIEF JUSTICE MATTHEWS noted that as people have aged and retired, they've had three changes in rapid time. Statistics show that the disposition rate has grown, beginning in the 1990s, to where it has now doubled the best they had previously achieved. Although they are a little ashamed of it, there is a reason for it: It is just normal. They encourage new justices to take office as soon as they can, and there is a time when they are getting up to speed. CHIEF JUSTICE MATTHEWS said that is the normal delay. If, however, they have the extraordinary delay that can be inherent in this resolution, even seven months' delay, it will hurt the operation of the court. Although the court of appeals can use pro tems, the supreme court has rejected the idea of using temporary substitutes because it distorts the precedent. For example, one can legitimately wonder, when there is a 3-2 decision and one of the deciders is a temporary person, how long that precedent will last. Therefore, they don't use pro tems routinely, and in this decade they haven't used them except maybe in extraordinary circumstances. CHIEF JUSTICE MATTHEWS told members that in the court of appeals, a high-volume court, each judge must author ten opinions a month or find himself going under water. He commented, "And ten is all you can do, and all we do is four, and we think we're working hard. But if you increase the workload by removing a third of the court - or delaying the appointment of a third of the court by a system that has delay inherent in it - you will really impose a great burden on that small court." Number 0379 CHIEF JUSTICE MATTHEWS mentioned the potential for stalemate when the legislature cannot agree with the governor's appointment, noting that what would happen then is still ambiguous. Either way, there is quite a bit of delay, and it is not something the court looks forward to. Chief Justice Matthew told members the federal system now is in a state of crisis, with something akin to a near- total refusal to confirm appointments. However, that is a huge system with great resources and lots of retired judges, and they are using pro tems, retired judges and judicial surrogates. For example, one recent important federal case was tried by a magistrate, which happens increasingly in the federal system, partly because it is one thing they can do when dealing with the type of delay inherent in that system. Number 0501 CHIEF JUSTICE MATTHEWS referred to the third point, the merit selection system, and said it sounds a little haughty coming from someone who has cleared the system, but the best-qualified candidates are the only candidates who are supposed to come up. He expressed concern that if the system is designed so that - through a combination of executive and legislative disagreement - neither of the two candidates that might be sent up is acceptable, they might have to work their way down the list. Number 0566 REPRESENTATIVE JAMES asked whether Chief Justice Matthews would agree there is already built-in partisanship, and that judges necessarily follow their own basic philosophies. She discussed the swing of the pendulum and federal appointments, then asked whether legislative confirmation wouldn't only make the partisanship possibility more visible. Number 0654 CHIEF JUSTICE MATTHEWS replied, "In our tradition in this state, I wouldn't agree that there is a partisanship. I don't know the political registration of my colleagues. We don't discuss it. I've never asked and won't ask. And I know that many governors have appointed members of opposite parties; in my case, that was true. As I say, I'm not quite sure whether it's true or not in other cases. But we have no tradition of political affiliation with the appointing authority." CHIEF JUSTICE MATTHEWS said that can be seen in U.S. Supreme Court appointments, but he is not sure whether it can be seen much in the appointments of the lower federal courts. He doesn't accept the premise that partisan politics is inherent in the appointment of Alaska's judges. "It's not something that I'm aware of," he added. Chief Justice Matthews concluded by suggesting that if there is a public perception that partisanship is involved, it is not justified. Number 0784 REPRESENTATIVE JAMES commented that she doesn't think it is avoidable or bad, but inherent. "And so therefore I think we need to minimize it as much as possible, but I don't think we can eliminate it," she added. Number 0810 REPRESENTATIVE COWDERY asked how Chief Justice Matthews thinks the merit system would differ if this resolution passed. CHIEF JUSTICE MATTHEWS explained, "Well, you have, say, five applicants go through the judicial council screening process. ... What we usually do is we look for a clear break, using the various procedures that we have. The break may come at two, it may come at three, it may come at four, or they may be no breaks, so you send up all five. Sometimes it comes at two, so you send up only two." He suggested if the governor appointed the first candidate, that candidate was rejected by the legislature, and the governor refused to appoint the second candidate, they would go back through the cycle. Assuming the same pool of candidates, they would then take candidates three and four, who according to the standards established by the judicial council are not among the best- qualified candidates. Number 0886 REPRESENTATIVE ROKEBERG asked, "Mr. Chief Justice, do you believe that the cases that emanated from the Alaska Supreme Court ... would be characterized as liberal, conservative or middle-of-the- road, from a national perspective? Have they in the past, or are they currently?" CHIEF JUSTICE MATTHEWS replied that he doesn't know that he would characterize them one way or the other. He added, "You'd have to look in various areas, too. If you're talking about sentencing law, search-and-seizure law, free-speech law, privacy law, ... there are different things that different commentators would say. And I just don't want to go on record as making any characterizations. But ... if you're interested in the subject, look at the latest Albany Law Review, and it discusses the voting record of ... the five of us who were together for ten years, and it's sort of interesting that they would take the trouble to analyze our voting records. But you'd be very surprised as to who is a conservative and who is a liberal, according to their data." Number 0980 REPRESENTATIVE ROKEBERG said he would take the time to do that. He then asked whether Chief Justice Matthews believes the public should have the right to know if a particular judicial candidate has had an affiliation at one end of the spectrum or another; he cited as examples membership in the Ku Klux Klan, the Sierra Club Legal Defense Fund, a right-to-life organization or the Trustees of Alaska. CHIEF JUSTICE MATTHEWS replied that he would defer to Mr. Cotton on this, but the screening process by the judicial council does go into groups that the candidates might be members of. He said it would be pretty inconceivable that a person who is a declared member of the Ku Klux Klan would pass the screening council. However, as far as the other groups, he doesn't know that anyone on the council would regard those as disqualifications. He indicated it is difficult to say what the decisions will be later on. CHIEF JUSTICE MATTHEWS said it is a bit hard for him to see how the right to know is denied in the current process. It is a public process with public hearings, and the interviews conducted of each candidate are open to the public. The only thing he knows of in the process that is not public, at the judicial council level, is the actual deliberations; they go into executive session for that, which he believes is the proper way to go. He added that the file that is accumulated, the prior public hearings and the interview itself are public. "We try to make it an open process," he concluded. Number 1158 CHAIRMAN GREEN asked, "If there are lifetime appointments to judgeships, do you feel that there is a potential there for ... separation occurring between the judiciary and the majority of the people?" CHIEF JUSTICE MATTHEWS answered, "I do, and I don't favor lifetime appointments." He emphasized that we do have public accountability in our judges. Although people say that nobody ever gets voted out, that isn't quite true, because we have had experiences where people are voted out. He told members there isn't a judge with a retention election coming up who isn't concerned about public reactions to decisions, adding, "I hope it's not so great a concern that it affects decisions, you know, because you don't want to make decisions merely because they're popular." He said he believes we have a good balance; given our merit selection method, it seems appropriate to have a public review. Chief Justice Matthews concluded by saying although one could think of other ways to do it, he doesn't think he would ever advocate a lifetime appointment. CHAIRMAN GREEN thanked Chief Justice Matthews for taking the time to come before the committee. Number 1260 GERALD J. DES JARLAIS testified via teleconference from Anchorage in support of HJR 47. He said with all due respect to the Chief Justice, it is inconceivable that all appointments to the bench to date have been completely nonpartisan. He believes there is a real possibility and potential for it to be the ultimate partisan decision, and for that reason alone, it should be examined carefully. MR. DES JARLAIS told members that over the years he has become increasingly concerned at "seeing the views of a tiny but energetic minority imposed on the vast majority, simply because they were able to find a judge who was sympathetic to their views, and with a rap of his gavel it became law." He said he thinks that is wrong, and the appointment of the judges is a factor in those very things. He strongly supports the independent judiciary and would certainly never favor some kind of litmus test for judges. However, he believes it is in the public's best interest that the judiciary reflect the broad general philosophies and values of the electorate, and HJR 47 is a step in that direction. MR. DES JARLAIS stated, "The bar association: in my view, probably all very honorable gentlemen, but I can't believe that they respect or represent my views, or are as interested in my views and my philosophies as my legislator, who has to come to me every two years and ask for my vote. So, ... I'd like to know what someone's values are, what they believe in, before they become a judge, because it is an extremely important ... appointment that bears heavily on my lifestyle, my business and a variety of things. I think these things should not be kept secret from the public, as they are now. I realize there's a public hearing, but not the same as a legislative hearing where there's an examination of these candidates. Thank you." CHAIRMAN GREEN thanked Mr. Des Jarlais and asked whether there were questions. He then called on Mr. Schendel. Number 1415 WILLIAM B. SCHENDEL, President-elect, Alaska Bar Association (ABA), came forward to testify, specifying that he has practiced law in Alaska since 1974. He told members the ABA is a mandatory bar association; they represent all of the attorneys in Alaska, as well as all of the judges, who by definition are attorneys. There are 2,200 active attorneys in the state. The ABA is governed by a 12- person board, three of whom are lay members. Since 1959, the association has been vested with the constitutional responsibility of appointing the three attorney members of the seven members of the Alaska Judicial Council. It is from the ranks of the ABA's practicing members and the judicial officers that judges are appointed in Alaska. Mr. Schendel noted that the ABA is constitutionally precluded from being involved in partisan politics or spending a single cent of its money on any partisan matter. "That's by virtue of a constitutional case called Keller (ph)," he added. MR. SCHENDEL told members the ABA is concerned about several aspects of HJR 47; he would focus on practical rather than philosophical matters and emphasize the law of unintended consequences. First, the ABA is concerned that the addition of legislative confirmation for the appointment of attorney members to the judicial council will politicize the process. MR. SCHENDEL described the current process for appointment of attorney members to the judicial council. When a vacancy occurs in one of those three attorney seats, the ABA solicits nominations from all members, then conducts a secret-ballot vote of all members for the geographical area in which the vacancy occurs. Although not obligated to do so, the ABA board has routinely selected the top vote-getter among the candidates for the bar vacancy. Mr. Schendel stated, "I'm not aware of a single instance in which the board has declined to appoint the top vote-getter from the selection process. That means, as far as I can see, that the board has exercised no partisan judgment in the selection of the bar appointees to the judicial council." MR. SCHENDEL continued, "It's equally true that when people run for one of those bar seats that their contests - at least historically, up to this point - have not been conducted on a partisan basis. I'm not aware of a single contest - where attorneys have been running for the vacancy on the judicial council - where any candidate has identified him- or herself as a Republican, as a Democrat, as a liberal or as a conservative. Nor am I aware of any situation in which people have campaigned against candidates on that basis." MR. SCHENDEL observed that contests for the attorney seats on the Alaska Judicial Council are run on the same basis as contests for seats on a school board or a borough assembly, that is, on the basis of whether the person is attentive to the wishes of his or her constituency on the basis of, for instance, whether or not that person is a good listener. He said given that history, he hopes that members of this committee understand why the ABA is fearful of the prospect of converting that into a partisan race. Number 1611 MR. SCHENDEL told members the ABA's second concern is that legislative confirmation of judicial appointees will politicize the process, thereby restricting and skewing the pool of applicants willing to put in for a judgeship. He said, "My experience is that attorneys do not - and have not during the course of my 20-plus years of practicing law - thought of judges in terms of the identity of who has appointed the judges. That is, attorneys do not think of judge 'A' as having been appointed by a Republican or by a Democrat. Attorneys also do not characterize judges - by themselves, between themselves - as being liberal ... or conservative." MR. SCHENDEL said that nonpartisan aspect of the Alaska judiciary is reflected in the application process itself. Attorneys who choose to put in for a judgeship do not campaign on the basis of their party or partisan philosophy. The ABA is concerned that if legislative confirmation is requirement by the proposed amendment, that will change, skewing the pool of applicants. As Chief Justice Matthews had mentioned, there is currently a significant gap between the point when somebody puts in an application for a judgeship and the date of the ultimate appointment, typically about six months. During that time, all applicants for a particular vacancy are ethically obligated to tell all clients that they are running for a judgeship. Consequently, many current and potential clients will decide not to patronize that attorney because of the prospect that if appointed, the attorney will no longer be able to finish that client's representation and the client will be forced to seek other counsel, at extra expense. MR. SCHENDEL expressed concern that adding another six months or more of delay will further impact clients. As a consequence, fewer and fewer private practitioners will apply for judgeships. He explained that current appointments to judgeships are already disproportionately skewed in favor of people from public employment backgrounds, who have been district attorneys, public defenders or assistant attorneys general. Mr. Schendel predicted that adding this legislative confirmation, which will politicize and delay it, will further skew the pool of people willing to apply for judgeships, and although unintended, there will be an even greater concentration of public attorneys among the applicants. Number 1773 REPRESENTATIVE PORTER asked if it is difficult for an ABA member to go through that process, recognizing that he may vote against someone who is appointed and that it might get out. MR. SCHENDEL replied, "The votes are public. I'm not aware of any repercussions that have happened there, and I don't see anything in the proposal before the committee that would address that in any case." Mr. Schendel said he thinks there is some sensitivity, especially if someone is from the same hometown as an applicants; someone would have to have pretty good reasons and a pretty thick skin to vote against somebody who was on the margins. REPRESENTATIVE COWDERY asked how long the terms are for lawyers on the judicial council. MR. SCHENDEL said six years. REPRESENTATIVE COWDERY asked whether they get renominated. MR. SCHENDEL deferred to Mr. Cotton. MR. COTTON said they can be reappointed once, although that hasn't happened in quite a few years. REPRESENTATIVE COWDERY asked if Mr. Schendel is a practicing attorney. MR. SCHENDEL said yes, private. Number 1859 GEORGE WILL, JR., testified via teleconference from the Mat-Su Legislative Information Office (LIO), specifying that he is in support of the concept of HJR 47, although he believes constitutional amendments should not be taken lightly. He suggested before it is passed, several other issues ought to be visited. Specifically, district and superior court judgeships are excluded from this bill, and he would like to see them included. MR. WILL told members he doesn't believe retention elections are working in Alaska, suggesting that for the most part, the public has no experience in the court system and automatically votes for retention. He would like to see a term limit of six to ten years put on judgeships, depending on the level of judgeship. He agreed with Mr. Coghill that the courts make a lot of law, rather than administering and interpreting the law that the legislature passes, which he said concerns him greatly. MR. WILL further said the cases mentioned in the federal system are sensational cases, but not the rule. He stated his belief that in the federal system, just about all levels of judges are approved by the Congress. He would definitely like to see all the judges in Alaska approved through the legislative system. MR. WILL next referred to politicization of the system. He said that anybody who knows anything about the ABA knows it is not Republican-led or Democrat-led; however, he thinks a political philosophy permeates it and that a lot of attorneys are forced to be members but are not represented by the bar association. Mr. Will disagreed that the system isn't broken. He suggested that people who had been through the court system, whether they had prevailed or lost, would mostly say that the court system does not run the way it should. Mr. Will concluded, "You have a problem here, and I think that HJR 47 is an approach to solving the problem, but I think it needs to be looked into a lot further. As it stands now, I don't think that it should be put before the voters. I think it should look into some of these other matters." Number 2016 MARCI SCHMIDT, Parents United for Custodial Justice, testified via teleconference from the Mat-Su LIO, specifying that the organization is based out of Wasilla. She stated, "Currently we are in support of HJR 47. We very much feel that the court system is broken. A lot of people ... have come and told me their stories, have shown me court documentation where judges view one side only, without taking notice of the other side. We really feel that judges should be trained ... with backgrounds in counseling domestic violence and how to recognize the family (indisc.). This particular bill is the start of something that could be wonderful." MS. SCHMIDT said it is pretty much already a political arena. They feel that members of the general public already believe that with the bar involved, and with judges in general, it is political. She stated, "But most of all, we really feel that we would like to be involved in how to choose our judges, and hopefully that this can be passed, and of course, as Mr. Will said, be looked into further." Number 2090 CHAIRMAN GREEN asked whether Carol Palmer wished to testify from the Mat-Su LIO, but she indicated Ms. Schmidt had covered everything for Parents United for Custodial Justice. He then called on Joseph Henri, but he was no longer present at the hearing. Number 2103 MARK REGAN came forward to testify. He told members he is not an officer in the Juneau Bar Association, but the resolution in opposition, provided that day by Judge Stewart, had come from his own word processor. Mr. Regan stated, "I have nothing to add to that resolution except for one thing. And it may be a somewhat dangerous thing to say, but if you are looking at the record of how the system that you are thinking of changing worked in the past 35 years, and you tried to match up supreme court and court of appeals appointments with the governors who appointed them, unless you had all the background it would be a very difficult job." MR. REGAN continued, "You simply can't look at who is on the court, and who was on the court, and who appointed them, and come up with any partisan pattern, really, at all. And there have been some quite partisan governors in this state at different times. And the process as it works now has managed to accomplish a system of appointment where you really just can't tell who appointed who. And that was something that the Juneau bar thought about considerably, and it is our belief that the process works." Number 2161 REPRESENTATIVE JAMES referred to testimony from the last couple of testifiers and the assertion that the system is broken, saying she is neither convinced it is broken nor working. Since being a Representative the past six years, she has looked at court cases on family issues including foster care, child abuse, and so forth. It appears that the court has taken the position as presented by the state, acting like a rubber stamp in many cases. Representative James suggested that often that is probably as it should be. However, review of cases has shown a disparity in the presentation from one side to the other, and the court has usually coming down on the side of the state. She requested a response, adding, "Tell me it's not true." Number 2215 MR. REGAN said he would answer on a personal level, indicating he works for Alaska Legal Services and that the Juneau Bar Association has no position on that. He stated, "I would say that, in fact, the nonpartisan character of the reviewing court is something that comes across when you're looking at how the Alaska Supreme Court reviews child-in-need-of-aid [CINA] and custody decisions. You have before you a whole series of important bills having to do with how the child-in-need-of-aid system works, and changes in that. Some of those respond to the fact that the Alaska Supreme Court has not followed what the state wanted to do quite as much as lower courts have. ... Those cases have come up for review, and the Alaska Supreme Court has said, 'Well, this statute really doesn't give the social workers the power to take a child in this situation.' That's why you have this in front of you, and I think it's an example of how the supreme court, in particular, does not follow what the state wants perhaps as much as trial courts do." Number 2260 REPRESENTATIVE JAMES referred to testimony that the system is broken and that people have lost faith in the court system. She said, "It's been my opinion that that is the case, but I'm not convinced that this is the solution. And so, I don't know if anyone has any other suggestion, but it seems like we do need to do something to make the public feel more comfortable with the legal system. Would you have any response on that issue?" MR. REGAN noted that he was speaking for himself, then replied that there is no more brutal experience for a parent to go through than a custody case, whether it is a private custody case or one where the state is involved. He explained, "I have clients whose lives they feel have been destroyed by going through this process. The sense that the judge who made a decision against you is a judge who must be biased, and the process should be changed to put a different judge on the bench -- it is a very hard thing to go through the process, and people look for reasons why things didn't go the way they wanted it to go. When they do that, it's a central experience in their lives. They add things up, and they say, 'Well, there was a bias here,' or, 'I got done in by somebody who was a political appointee.'" MR. REGAN concluded, "There are good judges and bad judges. But I think that the sense that something is wrong in the system is not connected to who appoints judges and how judges get on the bench. The system has enough ways to make mistakes and do wrong things and be harsh with people, without blaming the wrong part of it for the problem." Number 2330 REPRESENTATIVE BERKOWITZ agreed it is a shattering experience, particularly in CINA cases. However, it seems the problem that losing litigants have is very different when it can be blamed on incompetence in the judiciary, rather than possibly being ascribed to partisanship. He suggested that moving in a way that might be more partisan would probably undercut confidence in the judiciary even more. CHAIRMAN GREEN called on Scott Dahl in Anchorage next, but Mr. Dahl had departed. Number 2373 PAMELA BICKFORD testified via teleconference from Anchorage, speaking in support of HJR 47. She said it is not so much that a judge or potential judge would be selected on his views, but that the process would offer an opportunity for the public to voice a concern about a judge or his decision making that is not presently available to the public. She said she realizes that retention is brought up on a ballot on occasion. However, she believes there needs to be a critique, correction, or removal of the political bent described by some earlier testifiers, where judges may interpret the law as they see it, rather than follow the law as they are supposed to. MS. BICKFORD told members it has been her unfortunate experience to discover that the only correction of an improper decision is review by a higher court. The cost to the court system and the litigants, in time, money and energy, is extensive and prohibitive. Simple cases fouled by an off-the-wall decision by a judge are abandoned because of the extenuating circumstances, and the fair resolution of the issues under dispute is never reached. Instructive interpretation of the law is something that many litigants seek but never find, Ms. Bickford said, mentioning the resulting bad law and difficulty for litigants. TAPE 98-22, SIDE B Number 0006 MS. BICKFORD concluded with a suggestion that this go further and include term limits. She indicated an attorney would then have to return to practice and interpret his own decisions in the real world. Number 0027 KEN JACOBUS testified via teleconference from Anchorage. He said six to eight people had left "because they couldn't afford to stay here," and he thinks that virtually all of them support the resolution. Mr. Jacobus said he strongly disagrees with a number of things he had heard during testimony, the most important being that the first person on the bar poll is best-qualified, with the second being second-best-qualified, and so forth, so that if the top candidate were rejected by the legislature, they would have to go to unqualified candidates. MR. JACOBUS stated, "This isn't true. In order to get a rating on the bar poll, you go through a vote of the bar members. There's an awful lot of back-room politics, which is conducted during the course of this vote, for the purpose of securing the top one or two positions on the ballot. ... It does show that the person is qualified, but it does not show that the person is most-qualified or second-most-qualified, because that depends upon the success of the person or the person's supporters' campaign among the lawyers to get the top vote." Number 0089 MR. JACOBUS said this proposal doesn't change the selection process except right at the end. The governor would make a recommendation, and the legislature would act on it. He suggested there would be two positive results. In addition to the the public input, the governor would have to choose an appointee acceptable to the legislature. If they are of opposite persuasions, a middle-road candidate would have to be selected, resulting in a judge more acceptable to Alaskans. MR. JACOBUS suggested that if the applicants know the final decision must be made by the governor and the legislature, there will be more applicants. He stated, "For example, look at the situation right now. If a judicial position came open I would not apply for it because I know that Governor Knowles is not going to appoint me. ... I've gone through the bar poll, through the process. It's absolutely miserable. It's the last thing you want to do in your entire life, all the stuff ... that's said about you, everything that goes on. But ... if I knew that the legislature and the governor made the decision, in essence, jointly, and that ... a nominee would have to be chosen by the governor who was acceptable to the legislature, I very well might go through it." MR. JACOBUS continued, "In any event, I think what you're going to get is more candidates and better-qualified candidates, if they know that the governor's appointment is not the final thing. Republic governor: You're not going to get Democratic applicants. Democratic governor: You're not going to Republican applicants." He indicated there is much more he could say. He expressed that this is a very important subject, noting that he has been a member of the American Judicature Society for 25 years. Mr. Jacobus further said he agrees with Ms. Bickford that term limits on judges are crucial. He said there are a lot of judges in Anchorage who were appointed young but who are now burned out and can't afford to retire. Number 0181 MR. JACOBUS read into the record written statements by two people who'd had to leave the LIO. The first, from Wayne Anthony Ross, said: "Dear committee members: I came down to the legislative affairs office to testify in favor of this resolution. There appeared to be a lot of people waiting to testify, and I have a legal brief due this afternoon that I need to finish. After waiting an hour, I simply had to leave. For the record, I support this resolution. I believe it allows greater public participation in the selection process for judges. It does not take anything away from the bar association. Instead, it will improve the judicial council's deliberations because the council will have to realize that their nominations will now be subject to legislative and public scrutiny. I apologize again for not being able to stay for the entire hearing. Wayne Anthony Ross, member of the Alaska bar since 1969, practicing attorney for 30 years." Number 0234 MR. JACOBUS next read a statement from Susan Fischetti, who had identified herself for this purpose as being with the Alaska Small Business Coalition, and who had indicated that four other members had had to leave the hearing. Her statement read: "I strongly support HJR 47. The system does not work well, and it's time for a change. HJR 47 is fair and will help include the public in the process. The public has the right to know and should be able to vote on this issue. Susan Fischetti." Number 0275 VICTOR FISCHER testified via teleconference from Anchorage, advising the committee he had been a member of the Alaska Constitutional Convention and had written a book about it; he had also written numerous articles about the convention and the constitution itself. Mr. Fischer expressed strong opposition to HJR 47. He suggested that most of the things said in its favor would argue for electing judges, or for having periodic re-election of judges. MR. FISCHER stated his belief that the proposal is technically not workable. He doesn't believe that legislative confirmation would bring in the public. It might bring in a few people, but it would bring in politics, unquestionably, and the whole system was designed to keep it isolated from partisan politics as much as possible. Mr. Fischer stated, "I think the record of our judicial system has been excellent from that standpoint. You can look at appointments made by Democratic and Republican governors that have stood up over time, especially when you look at the appellate and the supreme court levels." MR. FISCHER told members that technically, and in terms of style, with all due respect to his friend John Cowdery, the drafting of the proposed amendment is an inexcusable abomination. He stated, "I have hardly ever seen anything this poorly drafted. This is not constitutional language that is proposed. It's the worst of legislative drafting." He suggested comparing it with the clear, declaratory, positive, simple, straightforward, understandable sentences contained in the article on the judiciary, including Sections 1 through 5. He stated, "You don't have convoluted language that just doesn't fit into constitutions." Number 0395 MR. FISCHER said the only part of HJR 47 that is properly drafted is Section 3, which is clean, understandable and "doesn't make a mess." He told members he would say almost the same thing about HJR 4, noting that he had signed up to testify on both resolutions. He stated, "I think ... HJR 4 is not significant. I don't think it's an important proposed amendment. I think it would tilt the balance of the powers at the constitutional level somewhat from the legislative to the executive, but not significantly." He said HJR 4 is another example of lousy drafting. He offered to work with anyone that wants to, or to provide examples. MR. FISCHER suggested the legislature should establish a drafting process akin to what existed in the constitutional convention, to get proposed amendments into proper shape, so that they fit into the constitution, with constitutional language, and they don't result in the hodge-podge that exists in HJR 47 "or in the legislature-drafted amendment that became Section 16 and 17 of the finance article, having to do with, as I remember, the expenditure limit and ... the budget reserve account." He thanked the chairman and offered to follow up. Number 0472 REPRESENTATIVE COWDERY commented that there are good judges and bad judges. "And if this bill is passed, I think there would be fewer bad judges," he added. MR. FISCHER responded, "I will challenge Mr. Cowdery to specifically point out which of the supreme court justices - just to take that example - ... would be considered a bad judge, or which one of the appellate court judges you would consider not acceptable." CHAIRMAN GREEN suggested that would be a matter between Mr. Fischer and Representative Cowdery in a different forum. He asked about Mr. Fischer's offer to submit examples for the record. MR. FISCHER said he would have the LIO fax his notes on HJR 4, which are mainly to eliminate totally unnecessary language and simplify the proposed amendment. He added, "HJR 47 is so deficient in its drafting and construction that I think it would be very difficult for me to have anything intelligible. I'd be glad to go over it with somebody line by line." REPRESENTATIVE BERKOWITZ replied, "Please don't turn your talents to HJR 47." CHAIRMAN GREEN thanked Mr. Fischer. [HJR 47 was held over.] ADJOURNMENT Number 0549 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee meeting at 3:39 p.m.
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