Legislature(2001 - 2002)

05/05/2001 01:10 PM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                     ALASKA STATE LEGISLATURE                                                                                   
                  SENATE STATE AFFAIRS COMMITTEE                                                                              
                            May 5, 2001                                                                                         
                             1:10 p.m.                                                                                          
MEMBERS PRESENT                                                                                                               
Senator Gene Therriault, Chair                                                                                                  
Senator Randy Phillips, Vice Chair                                                                                              
Senator Rick Halford                                                                                                            
Senator Bettye Davis                                                                                                            
MEMBERS ABSENT                                                                                                                
Senator Drue Pearce                                                                                                             
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 55                                                                                                              
"An  Act changing  the  name of  the Alaska  Pioneers'  Home to  the                                                            
Alaska  Pioneers' and  Veterans' Home  and of  the Alaska  Pioneers'                                                            
Homes  Advisory Board  to the Alaska  Pioneers'  and Veterans'  Home                                                            
Advisory  Board; relating  to  services for  veterans  in the  home;                                                            
relating  to  the   advisory  board  for  the  home;   making  other                                                            
amendments to  the statutes relating to the home;  making conforming                                                            
amendments to other statutes;  and providing for an effective date."                                                            
     HEARD AND HELD                                                                                                             
HOUSE BILL NO. 167                                                                                                              
"An  Act  relating  to license  plates  for  Alaska  National  Guard                                                            
personnel  and for  antique motor  vehicles; relating  to gold  rush                                                            
license plates; and providing for an effective date."                                                                           
     MOVED HB 167 OUT OF COMMITTEE                                                                                              
SENATE BILL NO. 87                                                                                                              
"An Act  providing  special absentee  ballots for  voters in  remote                                                            
     HEARD AND HELD                                                                                                             
SENATE BILL NO. 159                                                                                                             
"An Act relating  to retention elections for judges  of the court of                                                            
     HEARD AND HELD                                                                                                             
PREVIOUS COMMITTEE ACTION                                                                                                     
SB 55 - See State Affairs minutes dated 2/8/01.                                                                                 
HB 167 - No previous action recorded.                                                                                           
SB 87 - No previous action recorded.                                                                                            
SB 159 - No previous action recorded.                                                                                           
WITNESS REGISTER                                                                                                              
Jim Duncan                                                                                                                      
Department of Administration                                                                                                    
PO Box 110200                                                                                                                   
Juneau, AK  99811-0200                                                                                                          
POSITION STATEMENT: Testified on SB 55                                                                                        
Ed Barber                                                                                                                       
Pioneers of Alaska                                                                                                              
No address provided                                                                                                             
POSITION STATEMENT: Testified on SB 55                                                                                        
Gene Dau                                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT: Testified on SB 55                                                                                        
Representative Dyson                                                                                                            
Alaska State Capitol, Room 104                                                                                                  
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Sponsor of HB 167                                                                                         
Senator Lincoln                                                                                                                 
Alaska State Capitol, Room 11                                                                                                   
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Sponsor of SB 87                                                                                          
Sara Boario                                                                                                                     
Staff to Senator Lincoln                                                                                                        
Alaska State Capitol, Room 11                                                                                                   
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Testified on SB 87                                                                                        
Gail Fenumiai                                                                                                                   
Election Program Specialist                                                                                                     
Division of Elections                                                                                                           
P.O. Box 110017                                                                                                                 
Juneau, AK 99811-0017                                                                                                           
POSITION STATEMENT: Answered questions on SB 87                                                                               
Senator Donley                                                                                                                  
Alaska State Capitol, Room 506                                                                                                  
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Sponsor of SB 159                                                                                        
Chris Christensen                                                                                                               
Deputy Administrative Director                                                                                                  
Alaska Court System                                                                                                             
820 W. 4th Ave                                                                                                                  
Anchorage, AK  99501-2005                                                                                                       
POSITION STATEMENT: Testified in opposition to SB 159                                                                         
Bill Cotton                                                                                                                     
No address provided                                                                                                             
POSITION STATEMENT: Testified on SB 159                                                                                       
ACTION NARRATIVE                                                                                                              
TAPE 01-27, SIDE A                                                                                                            
Number 001                                                                                                                      
CHAIRMAN GENE  THERRIAULT called the Senate State  Affairs Committee                                                          
meeting  to  order  at  1:10  p.m.  Present  were   Senators  Davis,                                                            
Phillips, Halford and Chairman Therriault.                                                                                      
The first order of business was SB 55.                                                                                          
          SB  55-PIONEERS' AND VETERANS' HOME/ADVISORY BD                                                                   
CHAIRMAN THERRIAULT said  it was not his intent to move SB 55 but he                                                            
would like  to hear more information.  Some pioneers who  oppose the                                                            
bill  in its current  form  but think  there is  the possibility  of                                                            
working things  out have contacted  him. Earlier, when he  asked for                                                            
information on  the regulation package it was still  in outline form                                                            
but he thought  it might help allay some of the fears.  Also, at the                                                            
House State Affairs Committee  meeting the contents of the letter to                                                            
Mr. Leo  Kaye from Tony Principi  were read  into the record  and he                                                            
wondered  whether Commissioner  Duncan  had reviewed  the letter  or                                                            
been in touch with the  Veterans Administration (VA) and was able to                                                            
explain some  of the terminology  in the  letter. Specifically,  the                                                            
line that says,  "The VA State Home per diem grant  program provides                                                            
federal payments  to states for eligible veterans"  is unclear as to                                                            
whether  the funding  flows  to the  individual  veteran  or to  the                                                            
state. Next, the  line stating, "We look forward to  working closely                                                            
with the state  to help Alaska meet all federal grant  requirements"                                                            
left  unanswered  what those  grant  requirements are.  Finally  the                                                            
mention of taking over  one of the pioneer homes or a wing of a home                                                            
is quite possibly causing some concern among Pioneers.                                                                          
JIM DUNCAN, Commissioner  of Administration, passed  out copies of a                                                            
letter  he  sent   to  the  chairman  of  the  Pioneers   of  Alaska                                                            
legislative committee  in March 2001 and a letter  about regulations                                                            
he sent to Chairman Therriault in February.                                                                                     
The Pioneers do have specific  concerns about the legislation and he                                                            
now recommends three amendments to address those concerns.                                                                      
        · First, they didn't want the state pioneer home system to                                                              
          fall under federal  control and regulation. That has never                                                            
          been  the intention and to  make this clear he  recommends                                                            
          that  legislative committees  add  an intent section  that                                                            
          clearly   states  that   it  is   the  intention   of  the                                                            
          legislature  that this remain  a state owned and  operated                                                            
          system  located within  the Department  of Administration                                                             
          and  it is not  to fall under  federal rules, regulations                                                             
          and requirements.                                                                                                     
        · The second recommendation is to delete the language that                                                              
          refers  to cooperation  with the  federal government  from                                                            
          the pioneer home statutes.                                                                                            
        · The third recommendation stems from the concern about                                                                 
          putting  veteran's preference  in regulation and  the fear                                                            
          that  it  might  result in  a  veterans'  home  and not  a                                                            
          pioneer/veteran  home. The regulation outlined seems clear                                                            
          and  says the 21 percent  preference will be of  the fully                                                            
          funded beds so  if all 600 beds were funded it would be 21                                                            
          percent  of 600 and if there  are just 500 funded  beds it                                                            
          would  be 21  percent of  500. Preference  would never  be                                                            
          given to more  than 21 percent of the funded beds. Because                                                            
          of the  concerns, he recommends putting  the regulation in                                                            
          statute,  which would resolve the concern  because then it                                                            
          would require legislative action to change it.                                                                        
The bill  drafters have  been asked  to look at  the language  again                                                            
even though they believe  the current language that provides for the                                                            
21 percent preference and  spousal preference is language they would                                                            
recommend putting into statute.                                                                                                 
The name  change to  pioneer/veteran  home is  important because  to                                                            
fulfill the  commitment to  veterans they need  to be recognized  in                                                            
name.  The  name   change  is  also  necessary  from   the  Veterans                                                            
Administration's viewpoint.                                                                                                     
CHAIRMAN THERRIAULT  asked what is  entailed in the language,  "meet                                                            
all federal grant requirements."                                                                                                
COMMISSIONER  DUNCAN responded  that was in  the letter to  Mr. Kaye                                                            
from Department  of Veterans  Affairs' (VA)  Secretary Principi.  He                                                            
interprets that  as present VA policy such as the  requirements that                                                            
homes must  meet so that  the residents of  those homes qualify  for                                                            
the federal  VA benefits. In the discussion  with Mr. Principi  they                                                            
talked about  developing  a model pioneer/veterans  home system  and                                                            
obtaining a federal  waiver of the typical requirements  so veterans                                                            
in the combined home could  receive VA benefits. Currently there are                                                            
90 veterans in the pioneer  homes in Alaska and none of them receive                                                            
per diem veteran's  benefits. These benefits would  flow directly to                                                            
the veteran  who would use the money  to help pay for their  cost of                                                            
Secretary Principi  was clearly interested in working  on this model                                                            
combined system because,  if successful, it could be used throughout                                                            
the country.                                                                                                                    
CHAIRMAN  THERRIAULT asked  whether, as a first  step, the  VA would                                                            
make the change  in their policy to  allow veteran benefit  payments                                                            
to those 90 veterans currently in the pioneer homes.                                                                            
COMMISSIONER  DUNCAN said  that would  be a big step  for the  VA to                                                            
make without the  state taking some action to indicate  a commitment                                                            
to veterans. It  has to be a hand-in-hand joint effort.  Lacking the                                                            
preference  or name change it will  be difficult for them  to take a                                                            
first step.                                                                                                                     
CHAIRMAN THERRIAULT  asked if a name  change would be sufficient  to                                                            
get the  VA to change their  policy so the  veterans in the  pioneer                                                            
system could get the VA benefits.                                                                                               
COMMISSIONER DUNCAN could not give a definitive answer.                                                                         
CHAIRMAN  THERRIAULT  commented  that  for some  seniors,  the  name                                                            
change is the most egregious part.                                                                                              
SENATOR PHILLIPS  asked why there is such resistance  from the World                                                            
War II generation.                                                                                                              
COMMISSIONER  DUNCAN said  there is no one  specific reason.  First,                                                            
the pioneer home  system has been in existence since  1913 and there                                                            
is ownership that  has built up and change is frequently  difficult.                                                            
Second,  there has  been some misinformation  that  this would  mean                                                            
that pioneers  who have been on the list for years  would be stepped                                                            
over by veterans and they  would not get into the home when desired.                                                            
Also,  there is  concern that  pioneer  women would  not be  treated                                                            
fairly.  Last,  there is  concern  that  the  homes would  be  under                                                            
federal control and regulation.                                                                                                 
SENATOR PHILLIPS said veterans complained to him.                                                                               
COMMISSIONER   DUNCAN   agreed   there   are  some   veterans   with                                                            
reservations but there  are a number of veterans' organizations that                                                            
have expressed support.                                                                                                         
SENATOR PHILLIPS commented  that the average age in the pioneer home                                                            
is 85 and  most of them  probably served in  some capacity  in World                                                            
War  II  so there  must  be  a  difference  of  opinion  among  that                                                            
COMMISSIONER DUNCAN said  he thought the average age of occupancy is                                                            
87  and  the  waiting  list  is 83.  He  too  is  mystified  at  the                                                            
CHAIRMAN  THERRIAULT   announced   that  because  of  the   shifting                                                            
schedules,  a  number  of  individuals  were  not able  to  wait  to                                                            
teleconference  but  they faxed  their  testimony.  Most  identified                                                            
themselves as pioneers who opposed the change.                                                                                  
He said he would  like to continue to work through  the interim with                                                            
Commissioner  Duncan, his department  and the  VA to work toward  an                                                            
acceptable  piece  of  legislation.   Getting  a  number  of  issues                                                            
clarified with the VA would help with the discussion.                                                                           
SENATOR  DAVIS thought  there should  definitely  be some work  done                                                            
with the  VA. She has received  letters and  messages from  veterans                                                            
who are not in  favor of the change.  They have indicated  they want                                                            
something  dedicated to  them alone  - not as  a joint facility.  If                                                            
they  could be  assured  they would  be  adequately  cared for,  the                                                            
opposition might go away.                                                                                                       
SENATOR PHILLIPS pointed  out that Senator Davis' district abuts his                                                            
and the  complaints he received  came from  the area closest  to her                                                            
district so there are obviously concerns.                                                                                       
COMMISSIONER DUNCAN  was anxious to work on the various  concerns to                                                            
the legislation during  the interim. They will continue to work with                                                            
the VA as well.                                                                                                                 
SENATOR DAVIS  asked whether the two amendments Commissioner  Duncan                                                            
recommended were in printed form.                                                                                               
CHAIRMAN THERRIAULT said they were not formalized.                                                                              
COMMISSIONER DUNCAN  responded the first two are in  a letter to Bob                                                            
Hufman  and   the  third  recommendation   is  to  incorporate   the                                                            
regulations into statute.                                                                                                       
CHAIRMAN  THERRIAULT  added  the  current  statutory  language  with                                                            
regard to working with the federal government would be deleted.                                                                 
SENATOR PHILLIPS  asked for more information  for the committee  and                                                            
the public on the 65 percent funding reference.                                                                                 
COMMISSIONER  DUNCAN responded if  a stand alone home is  built, the                                                            
federal  government would  provide  65 percent  of the construction                                                             
costs while the state would provide 35 percent.                                                                                 
SENATOR PHILLIPS  thought that needs to be talked  about and fleshed                                                            
out during the interim.                                                                                                         
CHAIRMAN THERRIAULT called for teleconference testimony.                                                                        
ED BARBER is with the Pioneers  of Alaska and lives in Anchorage. He                                                            
encouraged  the committee to include  all parties when they  work on                                                            
this legislation  in the interim.  It's important to include  the VA                                                            
so they can  make their position known  to everyone. There  are many                                                            
questions that  need to be answered. At least nine  others wanted to                                                            
testify but were not able to wait for the committee to meet.                                                                    
He stressed the importance  of advertising any meetings and adhering                                                            
to whatever time schedule is set.                                                                                               
CHAIRMAN THERRIAULT thanked  Mr. Barber for his comments and assured                                                            
him that  his staff would  be contacting  the individuals to  assure                                                            
them their  faxed testimony is in  the bill packet and to  apologize                                                            
for the disrupted schedule.                                                                                                     
GENE DAU  testified as a  disabled veteran  in support of SB  55. He                                                            
asked Senator Stevens to  give the bill a plug when he addressed the                                                            
joint body and  he did so. This is a win-win situation  according to                                                            
Senator Stevens  and, as chairman  of the appropriations  committee,                                                            
he is in a position to help. He urged action.                                                                                   
CHAIRMAN THERRIAULT  announced SB  55 would be held in committee  to                                                            
be worked on in the interim.                                                                                                    
          HB 167-MOTOR VEH.LIC.PLATES: NATL GUARD/ANTIQUE                                                                   
REPRESENTATIVE  DYSON said a number of antique car  enthusiasts came                                                            
to him and  asked him to help make  it legal for them to  put a year                                                            
of manufacture  plate on their car.  The Division of Motor  Vehicles                                                            
has no objections to the  change. It is subject to two requirements.                                                            
First, the plate  must be legible and second, it must  not duplicate                                                            
an existing plate.                                                                                                              
At the  same time,  there was a  request to change  the law  so that                                                            
those individuals  with national guard plates wouldn't  have to turn                                                            
them in within 10 days following discharge from that service.                                                                   
CHAIRMAN  THERRIAULT  asked whether  the person  who  served in  the                                                            
national  guard had the right  to keep that  plate forever  or until                                                            
the plate needed to be renewed.                                                                                                 
REPRESENTATIVE  DYSON responded they  could keep the plate  forever.                                                            
CHAIRMAN THERRIAULT called for questions. There were none.                                                                      
There was no prepared  CS and no amendments from committee  members.                                                            
There was a zero fiscal note.                                                                                                   
He called for the pleasure of the committee.                                                                                    
SENATOR PHILLIPS  moved HB 167 and zero fiscal note  from committee.                                                            
There was no objection.                                                                                                         
                  SB  87-SPECIAL ABSENTEE BALLOTS                                                                           
CHAIRMAN THERRIAULT  commented he  had assured Senator Lincoln  they                                                            
would get to a brief discussion of her bill.                                                                                    
SENATOR LINCOLN said her  aide, Sara Boario, would explain the bill.                                                            
SARA BOARIO, staff to Senator  Lincoln, explained SB 87 would extend                                                            
the  60 day  special  absentee ballot  to  voters living  in  remote                                                            
areas.  Now only voters  living,  working or  traveling outside  the                                                            
United States are eligible.                                                                                                     
This  legislation  is a  result of  requests  by the  Coy and  Bower                                                            
families.  They outlined  the difficulties  they  faced in the  last                                                            
election. There are many  people who live in Bush Alaska and outside                                                            
of organized  communities. Mail service  is irregular and  sometimes                                                            
non-existent  and the  limited time  frame of  the regular  absentee                                                            
ballot  makes it  difficult to  exercise  their right  to vote.  The                                                            
regular  absentee  ballots  are  sent  out  three  weeks  before  an                                                            
election  and  this in  not  enough time,  particularly  during  the                                                            
As Representative Coghill  said when he introduced HB 109, voting is                                                            
the  fundamental   method  citizens   use  to  participate   in  our                                                            
democracy. Therefore, improving  the process for even a small number                                                            
of individuals is imperative.                                                                                                   
There is no fiscal impact associated with the bill.                                                                             
SENATOR  LINCOLN  noted  there  were  a  number  of  teleconference                                                             
testifiers who were available  that morning but could not wait until                                                            
the committee met in the afternoon.                                                                                             
SENATOR PHILLIPS asked for the definition of remote site.                                                                       
GAIL FENUMIAI,  Election  Program  Specialist with  the Division  of                                                            
Elections,  responded  remote  sites are  those  without  reasonable                                                            
access to polling stations.                                                                                                     
CHAIRMAN THERRIAULT asked  how many individuals would be affected if                                                            
they  gave voting  some planning  and thought.  The  60 day  special                                                            
absentee  ballot is available  to those who  are out of the  country                                                            
and there you're relying  on another countries mail system. Although                                                            
he is  well aware  of the  importance  of allowing  individuals  the                                                            
opportunity  to  vote,  people  must  take  some  responsibility  to                                                            
exercise that  duty. He asked whether  the division of elections  is                                                            
aware of  a number of people  who are precluded  from voting  due to                                                            
the time constraints.                                                                                                           
MS. FENUMIAI said these  voters do take the necessary steps to apply                                                            
for a regular  by mail ballot  but some of  the remote areas  do not                                                            
have  mail service.  They must  charter a  plane to  get their  mail                                                            
brought  to them  so in the  wintertime  the three  week time  frame                                                            
passes quickly.                                                                                                                 
She did not have  a quantifiable number of voters  that are affected                                                            
but they have  received a number of  comments from angry  voters who                                                            
did not get their ballots back in time for them to be counted.                                                                  
MS.  BOARIO  added that  Shelly  Growden,  election  supervisor  for                                                            
region three,  reported over 1,000 voters living in  remote areas in                                                            
the interior  and Prince William Sound  area that are classified  as                                                            
permanent absentee  voting areas. Many of those voters  live outside                                                            
organized communities and have no mail service.                                                                                 
CHAIRMAN THERRIAULT  asked for confirmation  that the definition  of                                                            
remote is in statute.                                                                                                           
MS. FENUMIAI thought it  was in statute but did not recall seeing it                                                            
in Title 15 but the term  "reasonable access remote area" is used in                                                            
other locations in statute.                                                                                                     
CHAIRMAN THERRIAULT was  concerned that it not become the division's                                                            
responsibility to ensure each individual gets a ballot.                                                                         
MS. FENUMIAI agreed and  said the division would have to decide on a                                                            
procedure for identifying these people.                                                                                         
CHAIRMAN  THERRIAULT asked  how the special  60 day absentee  ballot                                                            
MS. FENUMIAI  replied that  for the primary  the voter gets  a blank                                                            
ballot  with a  list of  offices that  are  up for  election in  the                                                            
district  in which they  reside and  a list of  candidates who  have                                                            
filed  for  office. The  voter  may  then write  in  the  name of  a                                                            
candidate.  They are also sent the  official ballot and if  that one                                                            
is voted, returned  and received in time it is counted.  If not, the                                                            
special event  ballot is counted instead. For the  general election,                                                            
the voter gets  the same type of ballot but they have  the option of                                                            
either writing in the name  of the candidate or writing in the party                                                            
of  their choice  for  each office.  This  is because  the  election                                                            
results  are not certified  for the  primary at  that time and  that                                                            
voter's candidate  of choice  may not have  advanced to the  general                                                            
election ballot.                                                                                                                
CHAIRMAN THERRIAULT said  he wants to know more about the definition                                                            
of remote and  how that would work. He also asked  whether voting by                                                            
fax  was an  in state  option  or available  to  just  out of  state                                                            
MS. FENUMIAI assured  him fax voting is available  to voters both in                                                            
and out of state.                                                                                                               
Side B                                                                                                                          
CHAIRMAN  THERRIAULT assured  Senator Lincoln  the discussion  would                                                            
continue and that he needed  more information on how remote would be                                                            
defined and the controls the division would institute.                                                                          
SENATOR LINCOLN  said huge numbers  of voters would not be  affected                                                            
but  people   that  do  make   every  effort   to  vote  should   be                                                            
CHAIRMAN THERRIAULT held the bill in committee.                                                                                 
               SB 159-APPEALS COURT JUDGES RETENTION                                                                        
SENATOR DONLEY  described the bill  as a Senate Judiciary  Committee                                                            
bill that would shorten  the terms of office of the court of appeals                                                            
from eight  to four years. Pursuant  to research that was  performed                                                            
after the bill  was drafted, he suggested a committee  substitute to                                                            
change the four-year term to six years.                                                                                         
There are various systems  for selection and retaining judges across                                                            
the United  States. The  committee's research  shows there  are only                                                            
eight pure  merit states  of which Alaska  is one. Of those  states,                                                            
the  average length  of  office is  about  7.2 years  for  appellate                                                            
courts so Alaska is above the average for the merit states.                                                                     
Many other states, even  those using a mix of the merit system, have                                                            
terms that  are less than  Alaska's. In fact,  the only states  with                                                            
longer terms than  Alaska's are those that use the  merit system and                                                            
have the Senate confirm  the appointments. Given that eight years is                                                            
above the  national  average and that  most other  states elect  the                                                            
judges directly, it appears  that Alaska has less judicial oversight                                                            
and longer terms than most states that use the merit system.                                                                    
He feels it  would be better public  policy to have a six  year term                                                            
rather than the four years  the bill calls for. This is more in line                                                            
with the  national average,  particularly since  there is no  direct                                                            
election of judges, just the retention election option.                                                                         
Number 2109                                                                                                                     
CHRIS  CHRISTENSEN, Deputy  Administrative  Director  of the  Alaska                                                            
Court System, testified  SB 159 would negatively impact the criminal                                                            
justice system in Alaska and thus they oppose the legislation.                                                                  
Judges are selected on  a rigorous merit based system in Alaska. The                                                            
minutes  of  the Constitutional  Convention   reflect the  long  and                                                            
careful  time spent  to  put together  a  system for  selecting  and                                                            
retaining  judges.  They wanted  a  system  that provided  for  both                                                            
independence  and accountability and  selected the Missouri  plan as                                                            
their  guide.  Judges  are  selected  using  the  merit  system  and                                                            
partisan  politics are  kept out  of the selection  and appointment                                                             
process  as much as  possible. They  then stand  for retention  on a                                                            
regularly scheduled basis.                                                                                                      
This has worked well and  there is no history of official corruption                                                            
in the Alaskan  judiciary, unlike many states. If  Alaskan attorneys                                                            
are polled, they  will say the quality of the bench  today is better                                                            
than  it  has ever  been.  There  are  many hard  working  and  well                                                            
respected attorneys who are committed to what they do.                                                                          
He said he  is perplexed to see legislation  that affects  the court                                                            
of appeals  because it does  not deal with  controversial cases.  It                                                            
hears criminal  appeals in a generally non-controversial  manner and                                                            
it applies  the most liberal  bill of rights  in the country  to the                                                            
laws the legislature passes.                                                                                                    
Judicial  independence  is  the  ability  to  judge  a case  and  to                                                            
interpret  and apply  the  law as  free  as possible  from  external                                                            
influences and pressures.  That is what the court of appeal does now                                                            
and SB  159 would  effectively reduce  the ability  to judge  a case                                                            
free of external  pressure simply because judges would  have to face                                                            
the voters  at much shorter  intervals.   Shorter intervals  make it                                                            
more likely that  political campaigns would be waged  against judges                                                            
because  of single  unpopular  decisions.  Longer terms  would  give                                                            
voters a longer term perspective on a judge's job performance.                                                                  
Although  it  is  stated  that this  legislation  is  to  bring  the                                                            
retention  periods  for Alaska's  judges  more  in line  with  other                                                            
states  he respectfully  disagrees  with  the conclusions  drawn  by                                                            
Senator Donley because  his data is out of date. Currently there are                                                            
39 states with an intermediate  court of appeals and 18 of those use                                                            
some  variation of  the merit  selection  and retention  system.  Of                                                            
those 18,  10 have terms  of 8 or more years,  8 have terms  of less                                                            
than  8 years.  Therefore,  Alaska's 8  year  term is  right in  the                                                            
middle. There  are 21 states without a merit system  for their court                                                            
of appeals  and 10 of those have terms  of 8 years or longer  and 11                                                            
have terms of less than  8 years. Again, Alaska is in the middle. If                                                            
you add  the totals  for the  39 states  you will  see that 20  have                                                            
terms of 8 years  or longer and 19 have terms of less  than 8 years.                                                            
Alaska's  terms are not  longer than  others they  are right  in the                                                            
Next,  he used  averages as  Senator Donley  did in  his memo.  This                                                            
proved  problematic since  there are  2 states  that appoint  judges                                                            
until age 70.  If you were to look  at the current court  of appeals                                                            
and apply  the age  70 standard, one  would have  a term of  greater                                                            
than 20  years and two would  have terms of  more than 25  years. He                                                            
called  those two  "age 70"  states 15  year terms  because most  of                                                            
Alaska's judges  serve 15 years. Of  the merit selection  states the                                                            
average is 7.9 years and  of the non-merit states the average is 7.8                                                            
years. This shows that Alaska is at the average.                                                                                
It is  argued that  judges of the  court of appeals  in Alaska  have                                                            
less accountability  than in most  other states but they  don't have                                                            
less accountability than  the four states with courts of appeal that                                                            
use appointments without  any retention process. In fact, he doesn't                                                            
believe they have less  accountability than judges in most of the 16                                                            
other states that  use the merit selection system.  They probably do                                                            
have  less  accountability  than  in  the  17  states  that  conduct                                                            
elections but,  according to the framers  of the constitution,  that                                                            
is  good. Many  of  the  framers came  from  states  with  contested                                                            
judicial elections and  were well aware of the pitfalls in that type                                                            
of accountability.                                                                                                              
Judges  who  are challenged   in retention  elections  do  have  the                                                            
ability to raise  money and oppose the election but  it's not a good                                                            
idea to have a  system where criminal court judges  must raise money                                                            
to  defend themselves  from  challenges  on  a regular  basis.  Each                                                            
litigant should have the  confidence of knowing that their case will                                                            
be heard on its  merits and not on the basis of public  or political                                                            
pressure.  The law  commands  allegiance  only because  it  commands                                                            
respect and it can only  do that if the public believes their judges                                                            
are neutral.                                                                                                                    
Reducing the term between  retention elections would also discourage                                                            
qualified applicants from seeking judicial positions.                                                                           
In response to Senator  Donley's recommendation that the term in the                                                            
proposal  be raised  from  four to  six years  he  noted that  every                                                            
person appointed  to the  court of appeals  faces the voters  at the                                                            
first general  election,  three years after  appointment. The  eight                                                            
year retention  term only  starts after they  have faced the  voters                                                            
that first  time. This gives  voters the chance  to look at  a judge                                                            
right away and evaluate the job.                                                                                                
Currently  supreme  court  judges have  a  10 year  retention  term,                                                            
superior court  judges have six years,  and the district  court four                                                            
years. Eight years  for the court of appeals fits  right in and that                                                            
is why  the legislature chose  eight years  in 1980 when it  created                                                            
the court of appeals.  Six years would give it the  same term as the                                                            
superior court,  which is a court  with less responsibility  and has                                                            
to make fewer controversial  decisions. To compromise and change the                                                            
term to six years would  have a very negative affect on the court of                                                            
SENATOR PHILLIPS  asked when the court  of appeals was established.                                                             
MR. CHRISTENSEN said he thought it was 1980.                                                                                    
CHAIRMAN  THERRIAULT noted  that Bill Cotton  was online to  testify                                                            
and that a three page sheet  from the Alaska Judicial Council was in                                                            
committee packets.                                                                                                              
BILL COTTON,  Executive  Director  of the Alaska  Judicial  Council,                                                            
testified that the council  is a small agency in the judicial branch                                                            
of government  and separate from the court system.  They are charged                                                            
with  investigating  and  screening  judicial  applicants  and  with                                                            
evaluating  the performance  of  judges  and making  the  evaluation                                                            
information and  retention recommendations available  to the public.                                                            
The council opposes SB  159 for a number of reasons; first he wanted                                                            
to refute the statement  made by Senator Donley that Alaska has less                                                            
oversight  and public  scrutiny of  judges than  most other  states.                                                            
This is  simply not the case  even in the  states that have  shorter                                                            
terms. There  is not another  state that  surveys every attorney  in                                                            
the state,  mails a summary  of the survey  to every voter  and puts                                                            
the detail of the survey on the Internet.                                                                                       
The implication  that Alaska Court of Appeals terms  are longer than                                                            
other states  is not the  case. Most states  that have intermediate                                                             
appellate courts have terms that are eight years or longer.                                                                     
The council believes this  would have a marginal discouraging effect                                                            
on qualified  applicants, particularly  those attorneys with  stable                                                            
practices in the private sector.                                                                                                
By  increasing the  number  of judges  that  are on  the ballot  for                                                            
review the  focus is taken off the  individual judges and  placed on                                                            
the group. Last  year there were 30 judges up for  review which made                                                            
it difficult to  thoroughly evaluate each one and  difficult for the                                                            
voters  to clearly  understand  each  judge's record.  Although  the                                                            
intent of the  bill is to increase review, it may  have the opposite                                                            
Costs will  be increased marginally  if SB 159 passes. The  Judicial                                                            
Council  filed a  small fiscal  note and  there will  probably  be a                                                            
small cost from the Division of Elections.                                                                                      
Most importantly,  this upsets the  balance setup by the  framers of                                                            
the  constitution  between  judicial  accountability   and  judicial                                                            
independence.  Judicial accountability is a critical  element of the                                                            
council's job  but judicial independence is critical  as well. It is                                                            
one of  the basic  principles upon  which our  country was  founded;                                                            
judges are supposed to  protect the rights of citizens regardless of                                                            
who is  displeased.  "We want  judges who  are fair,  fast,  polite,                                                            
smart but we  want and need judges  who decide cases on the  law not                                                            
who  the  parties  are  and  not  who  is  going  to  make  campaign                                                            
contributions  and not what is temporarily  popular." The  different                                                            
governmental  branches  have different  purposes.  The governor  and                                                            
legislature is elected  to carry out a political agenda while judges                                                            
are selected  to decide cases on the  law and the constitution.  The                                                            
delegates to  the constitutional convention  discussed the  issue of                                                            
selecting, evaluating and  retaining judges at length and they voted                                                            
overwhelmingly  to not reduce the  term of the only appellate  court                                                            
discussed which was the supreme court from ten to six years.                                                                    
On the  whole, the system  is excellent and  it is respected  across                                                            
the country  and world. The council  urges the balance not  be upset                                                            
with the proposal.                                                                                                              
CHAIRMAN THERRIAULT  asked Senator Donley whether  he had a question                                                            
about Mr. Cotton's statistics.                                                                                                  
SENATOR DONLEY  replied he  would like to  respond generally  to the                                                            
testimonies.  First  he  would  like  copies  of  Mr. Christensen's                                                             
research so he  could compare the differences with  his research. He                                                            
disagreed  with the last  research they received  from the  Judicial                                                            
Council.  States  that  were  listed as  merit  states  had  elected                                                            
judges.  There are few  states that  have a pure  merit system  like                                                            
Alaska does.  His research  indicates that  just seven states  don't                                                            
have either legislative  confirmation or "some other  lower level of                                                            
judges  being  elected."  It's  important   that  there  is  greater                                                            
accountability for the  lower level judges because that affects what                                                            
cases the higher  level judges will  see. Therefore, "to  ignore the                                                            
fact that you're  electing the lower judges when you  talk about the                                                            
accountability of the upper  judges, I think, is not logical and not                                                            
He didn't agree  with the argument that reducing length  of the term                                                            
would slow  the election process because  people wouldn't  have time                                                            
to review  all the judge's  records. He pointed  out there  are only                                                            
three judges on the court of appeals.                                                                                           
He didn't agree  that changing the length of the term  for the court                                                            
of appeals  would upset the balance  of the constitution  because it                                                            
was created  by the  legislature  years after  the constitution  was                                                            
SENATOR DONLEY  thought a vast number  of Alaskans would  agree with                                                            
him that eight years is  too long between elections for this type of                                                            
officials.  In fact, the  polling numbers  the legislative  majority                                                            
gathered shows the public agrees.                                                                                               
HB  159 does  not abandon  the  merit system,  "what's  before  this                                                            
committee  is going from eight  to four or  eight to six [years]  or                                                            
whatever option there is  and I'm suggesting from eight to four, I'm                                                            
not suggesting-or  eight to six- I'm  not suggesting the  abandoning                                                            
of  the  merit  system  here.  But  I do  suggest  that  we  are  an                                                            
extraordinarily  generous and long  terms of office compared  to the                                                            
lack, through  the pure merit system  states that are out  there and                                                            
not  considering  that all  these  many many  the vast  majority  of                                                            
states  have some  degree  of elected  judicial officials  in  their                                                            
SENATOR DONLEY disagreed  with Mr. Christensen's suggestion that the                                                            
court of  appeals has been  uncontroversial.  He thought looking  at                                                            
the efforts of  the current legislature with respect  to evidence of                                                            
rule 404(b) shows that  this court of appeals frequently ignores the                                                            
intent of the legislature  and poses their own political view on the                                                            
evidence rules.  "I say that because,  for many years, as  judiciary                                                            
chair, we  attempted to  simply bring Alaska  into conformance  with                                                            
the meaning  of evidence  rule 404(b)." The  effort was to  have the                                                            
language in  Alaska be interpreted  the same way the federal  courts                                                            
interpreted the  language but the court of appeals  has blocked that                                                            
for many years.                                                                                                                 
CHAIRMAN THERRIAULT  agreed with the  assessments. He asked  Senator                                                            
Donley to look  at Mr. Christensen's  data and point out  any flaws.                                                            
Although he  hasn't felt as much criticism  of the court  of appeals                                                            
as Senator Donley, he is  probably just unaware of where the problem                                                            
lay in the situation just described.                                                                                            
SENATOR DONLEY  gave as another example,  the interpretation  of the                                                            
statute   that  requires   the  mandatory   99  year  sentence   for                                                            
individuals  who have committed multiple  murders, torture  murders,                                                            
and of murder  of a police officer  or fireman in the line  of duty.                                                            
The court produced  an opinion saying the person had  to be notified                                                            
at  the time  of  sentencing  that they  might  be subject  to  that                                                            
sentence.  That is very  unusual in American  jurisprudence  because                                                            
sentencing  issues are usually  separate than  the charging  issues.                                                            
The Department  of Law disagreed with  this decision and  is another                                                            
example of their being controversial.                                                                                           
CHAIRMAN THERRIAULT commented  that one of the issues that weighs on                                                            
him  personally is  "trying  to get  good private  sector  attorneys                                                            
interested in  the judiciary. I think we've had a  problem with that                                                            
and  part  of it  just  might  be that  we've  just  had  democratic                                                            
governors  and they  appoint from  the end  of the  spectrum that  I                                                            
would perhaps  gravitate to  the other end.  Tony Knowles is  termed                                                            
out here so we might have a bite at the apple here."                                                                            
With  the three  year review  and then  eight year  review they  are                                                            
coming up for  election twice in an  11 period of time. Three  years                                                            
is probably  too short for  people see what  the judge is about  but                                                            
the   original  bill   was   just  four   years   even  though   the                                                            
recommendation is to change that to six years.                                                                                  
SENATOR DONLEY  said he knows  the legislation  won't be moved  that                                                            
day and  he suggested adopting  a CS version  that was at least  six                                                            
years  so the debate  over  the increment  could be  over six  years                                                            
rather than four years.                                                                                                         
CHAIRMAN THERRIAULT said  he agreed with that. He moved an amendment                                                            
to SB 159 to have a draft  drawn up that will change "four years" to                                                            
"six years" and  that will be the document that is  in committee for                                                            
discussion purposes. He asked for objection.                                                                                    
SENATOR DAVIS said she had no objection but she would move the                                                                  
amendment for him since he is the chair.                                                                                        
CHAIRMAN THERRIAULT thanked Senator Davis. There were no objections                                                             
to the amendment. The bill was held in committee.                                                                               
The meeting was adjourned at 2:37 p.m.                                                                                          

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