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