Legislature(2001 - 2002)

04/04/2002 03:55 PM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                    
                 SENATE STATE AFFAIRS COMMITTEE                                                                               
                          April 4, 2002                                                                                         
                            3:55 p.m.                                                                                           
MEMBERS PRESENT                                                                                                               
Senator Gene Therriault, Chair                                                                                                  
Senator Randy Phillips, Vice Chair                                                                                              
Senator Rick Halford                                                                                                            
Senator Bettye Davis                                                                                                            
MEMBERS ABSENT                                                                                                                
Senator Ben Stevens                                                                                                             
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 159                                                                                                             
"An Act relating to retention elections for judges of the court                                                                 
of appeals."                                                                                                                    
     MOVED CSSB 159(STA) OUT OF COMMITTEE                                                                                       
SENATE JOINT RESOLUTION NO. 43                                                                                                  
Requesting the United States Congress to grant a two-year                                                                       
moratorium on requirements for certain state payments under                                                                     
federal programs.                                                                                                               
     MOVED CSSJR 43(STA) OUT OF COMMITTEE                                                                                       
PREVIOUS COMMITTEE ACTION                                                                                                     
SB 159 - See State Affairs minutes dated 5/05/01.                                                                               
SJR 43 - No previous action to record.                                                                                          
WITNESS REGISTER                                                                                                              
Senator Dave Donley                                                                                                             
Alaska State Capitol, Room 506                                                                                                  
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Sponsor of SB 159 and introduced SJR 43                                                                   
Larry Cohn                                                                                                                      
Executive Director                                                                                                              
Alaska Judicial Council                                                                                                         
1029 W. Third Ave Suite 201                                                                                                     
Anchorage, AK 99501-1981                                                                                                        
POSITION STATEMENT:  Testified on SB 159                                                                                      
Ray Brown                                                                                                                       
AK Academy of Trial Lawyers                                                                                                     
510 L Street # 603                                                                                                              
Anchorage, AK 99501                                                                                                             
POSITION STATEMENT:  Testified on SB 159                                                                                      
Chris Christensen                                                                                                               
Deputy Administrative Director                                                                                                  
Alaska Court System                                                                                                             
820 W. 4th Ave                                                                                                                  
Anchorage, AK  99501-2005                                                                                                       
POSITION STATEMENT: Testified on SB 159                                                                                       
ACTION NARRATIVE                                                                                                              
TAPE 02-02-18, SIDE A                                                                                                         
CHAIRMAN  GENE   THERRIAULT  called   the  Senate  State   Affairs                                                            
Committee  meeting to  order at  3:55 p.m.  Present were  Senators                                                              
Phillips, Halford  and Chairman Therriault. Senator  Davis arrived                                                              
              SB 159-APPEALS COURT JUDGES RETENTION                                                                         
CHAIRMAN THERRIAULT  reminded committee members that  the bill was                                                              
initially heard  during the 2001  session. He called  attention to                                                              
the committee substitute (CS) in members' packets.                                                                              
SENATOR DAVE DONLEY said he supported  the proposed CS. It changed                                                              
the original legislation  from four year terms to  six year terms,                                                              
which  is consistent  with  the  data  they collected  during  the                                                              
CHAIRMAN THERRIAULT  said previous  testimony showed  a difference                                                              
in interpretation of  the data presented last session  and he told                                                              
the court  representative,  Mr. Christensen,  they want to  review                                                              
the difference in opinion on how  Alaska judicial terms compare to                                                              
those of  other states.  He asked  Senator Donley  whether  he had                                                              
read the letter from the court system dated March 28, 2002.                                                                     
SENATOR DONLEY replied he had not read the letter.                                                                              
CHAIRMAN  THERRIAULT announced  they  would  take testimony  while                                                              
Senator Donley read the letter.                                                                                                 
MR.  LARRY  COHN,  Executive  Director   of  the  Alaska  Judicial                                                              
Council, testified via teleconference.  He said he hadn't seen the                                                              
CS, but  he understood  it proposes a  six-year term  of retention                                                              
versus  the original  four-year  term. He  said  his remarks  were                                                              
applicable to the CS as well.                                                                                                   
The Judicial Council  evaluates judges standing  for retention and                                                              
they also  conduct interim evaluations  of judges two  years prior                                                              
to   the  retention   elections.  Their   system  of   performance                                                              
evaluation  is  used  throughout  the  country  and  their  review                                                              
process  surveys   about  10,000  Alaskans   including  attorneys,                                                              
jurors,  police,   probation  officers,   social  workers,   court                                                              
employees  and  independent  court  watchers.  They  also  solicit                                                              
public  comments and  conduct public  hearings. They  look at  all                                                              
aspects of judicial performance then  disseminate that information                                                              
in  the election  pamphlet that  is distributed  to every  Alaskan                                                              
household,  on the Internet  and other  more traditional  forms of                                                              
In 1999  the American  Judicature Society  published a  study that                                                              
reviewed 20 years  of the council's efforts to  provide the Alaska                                                              
public  with  information  upon which  they  could  make  informed                                                              
decisions.  The   study  made  it   clear  that  voters   use  the                                                              
information  provided by  the Judicial Council.  It compared  each                                                              
judge's performance  rating with  his or her proportional  numbers                                                              
of  do   retain  votes  and   found  there  was   a  statistically                                                              
significant correlation.  Nearly  80 percent of voters interviewed                                                              
in their  1996 exit  poll believed  that the  availability  of the                                                              
council's  evaluation information  helped to  make Alaskan  judges                                                              
more accountable.                                                                                                               
The evaluation  process  in Alaska  is a very  effective means  of                                                              
ensuring judicial  accountability. It is working  as intended with                                                              
the current eight  year appellate court retention  period. For the                                                              
years 1984-2000, attorneys gave appellate  court judges an average                                                              
rating of  excellent for  legal ability, impartiality,  integrity,                                                              
temperament,  diligence,  and  overall performance.  In  the  2000                                                              
retention  election, appellate  court  judges  again received  the                                                              
highest overall rating of excellent from court employees.                                                                       
Largely because of the work of the  court of appeals, criminal law                                                              
is  now  well established  in  Alaska  as  reflected in  the  high                                                              
appellate  affirmance   rates  of  trial  judges,   which  compare                                                              
favorably to national standards and  a trend of improved appellate                                                              
affirmance  rates  for  trial  court  judges  in  criminal  cases.                                                              
Criminal law,  which is the  jurisdiction of the  appellate court,                                                              
is particularly  susceptible  to public  sentiment. More  frequent                                                              
retention  elections  could  mean more  susceptibility  to  public                                                              
sentiment to  the detriment  of the  standards established  by the                                                              
Appellate Court and the measure of the criminal justice system.                                                                 
The  jurisdiction  of the  court  of  appeals already  limits  the                                                              
number of qualified applicants and  a shorter retention term could                                                              
well reduce interest in applying  for those positions. This is the                                                              
court of last resort in over 95 percent  of criminal cases because                                                              
the Supreme Court grants few hearing petitions.                                                                                 
He noted the fiscal  note was based on the four  year retention so                                                              
passage of the CS would require a small adjustment.                                                                             
The  proposed  legislation  is  not necessary  and  there  is  the                                                              
potential that  it would cause more  risk to the  criminal justice                                                              
system than benefits.                                                                                                           
There were no questions for Mr. Cohn.                                                                                           
MR.   RAY   BROWN,   the   Alaska   Academy   of   Trial   Lawyers                                                              
representative,  testified via teleconference  against  passage of                                                              
SB 159. He said  there has never been a sitting  Alaskan appellate                                                              
judge that  has not  been retained.  This is  a very  conservative                                                              
judiciary that  is narrow in  interpretation of state  and federal                                                              
constitutional  law and that  has a high  degree of affirming  the                                                              
trial court level decisions.                                                                                                    
Although  he spent many  years as  a criminal  defense lawyer,  he                                                              
does almost  no criminal  law now  so passage  of the  legislation                                                              
will have little  impact on him. Defendants whose  convictions are                                                              
affirmed  and a  small  group of  criminal  defense attorneys  who                                                              
don't like the decisions the court  rendered are the most frequent                                                              
critics of this  court. The three appellate court  judges are well                                                              
thought of and very well qualified.                                                                                             
His primary  concern is  stare decisis  or continuity of  decision                                                              
because there must  be some predictability in  terms of litigating                                                              
cases as a criminal  defense lawyer or a prosecutor.  The court of                                                              
appeals  decides some  very important  constitutional issues  when                                                              
interpreting  state   and  federal  law.  Among   those  primarily                                                              
involved are  the Fourth,  Fifth, Sixth  and Eighth Amendments  to                                                              
the  U.S. Constitution  and  the  state counterparts.  The  Fourth                                                              
Amendment deals with search and seizure,  the Fifth Amendment with                                                              
due process  and the right to  remain silent, the  Sixth Amendment                                                              
is the right to  counsel and the Eighth Amendment  is the right to                                                              
bail.  Continuity  in the  Fourth  and  Fifth Amendment  cases  is                                                              
particularly  important  and the  longevity  of  court of  appeals                                                              
judges  and the  longevity of  their decisions  are paramount  for                                                              
attorneys practicing  before the trial courts and  law enforcement                                                              
He   didn't  understand   why   Senator  Donley   introduced   the                                                              
legislation; nothing needs to be  fixed because nothing is broken.                                                              
The system has worked well.                                                                                                     
CHAIRMAN THERRIAULT  asked Senator Donley if he  wanted to comment                                                              
on the letter from  the Alaska Court System or did  he prefer that                                                              
Mr. Christensen testify first.                                                                                                  
SENATOR DONLEY wanted Mr. Christensen to testify first.                                                                         
MR.  CHRIS  CHRISTENSEN,  Deputy Administrative  Director  of  the                                                              
Alaska Court  System, explained that  Alaska has a  rigorous merit                                                              
based  system  for  the  selection  of  judges.  The  Constitution                                                              
framers  fashioned   a  system  that  provided   independence  and                                                              
accountability  while  being  as   non-partisan  as  possible  and                                                              
required judges to stand for retention on a regular basis.                                                                      
The system has worked well over the  years and there is no history                                                              
of official  corruption. They have  attracted many smart  and hard                                                              
working  attorneys who  are  very committed  to  their work.  They                                                              
dispose of  over 150,000  cases every year  and in a  typical year                                                              
three or fewer of those cases cause  any controversy. He asked the                                                              
Chairman to consider the fact that  if he didn't like 15 decisions                                                              
made in any one year, that would  represent one one-hundredth of a                                                              
percent of their total caseload.  It's unfortunate that that level                                                              
of satisfaction has  prompted proposals in recent  years to change                                                              
this system.                                                                                                                    
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 appeals does                                                              
now  and SB  159 is  intended  to reduce  that  ability by  making                                                              
judges face  voters at shorter  intervals. Shorter  intervals make                                                              
it more  likely that  political campaigns  would be waged  against                                                              
judges because of a single unpopular  decision. Longer terms would                                                              
give  voters   a  longer  term   perspective  on  a   judge's  job                                                              
If a  judge publicly announced  that he was  going to do  a public                                                              
opinion  poll in  a case  and base  his decision  on the  results,                                                              
people would  probably be  outraged. However,  he thought  that is                                                              
fundamentally  what  this bill  is  about.  The bill  sponsor  has                                                              
suggested  that  the retention  term  of Alaskan  appellate  court                                                              
judges  is  longer  than  the national  average.  Last  year  they                                                              
pointed out that  the data submitted by the sponsor  was flawed in                                                              
a variety  of ways.  At the  committee's request  he reviewed  the                                                              
data  a second  time and  got the  latest data  from the  National                                                              
Center of State  Courts and the American Judicature  Society. That                                                              
data agreed with the data submitted  by the sponsor in about three                                                              
quarters of  the cases. When  it didn't agree  he went to  a court                                                              
system's  web  site  or  a state's  constitution  or  statutes  to                                                              
determine  who was  correct. While  the sponsor's  staff found  32                                                              
states with a  court of appeals, there are, in  fact, 39. Eighteen                                                              
of those  states have a  merit-based system  while 21 have  a non-                                                              
merit based system.  The latter are either contested  elections or                                                              
direct  appointment  by  either   a  governor  or  a  legislature.                                                              
Alaska's eight-year  term is almost  exactly average.  The average                                                              
for the merit-based  states is 7.9  years and the average  for the                                                              
non-merit  based  states  is  7.8  years. If  the  basis  for  the                                                              
proposed  legislation is  that Alaska's  court has  a longer  term                                                              
than average then it's not an accurate statement.                                                                               
Every litigant  should have confidence  that his or her  case will                                                              
be  heard  on the  merits  and  not  on  the basis  of  public  or                                                              
political pressure.  Law commands allegiance only  if law commands                                                              
respect.  It  can only  command  respect  if the  public  believes                                                              
judges  are  neutral  when  they   are  deciding  criminal  cases.                                                              
Ultimately, judicial  independence is  not for the benefit  of the                                                              
judge, it is for the benefit of the public.                                                                                     
Last  year there  were over  100,000  cases that  were within  the                                                              
appellate  court  jurisdiction.  A relatively  small  number  were                                                              
felonies,  most were  misdemeanors and  violations of  ordinances.                                                              
Anyone  who  has  ever  been careless  or  exhibited  a  lapse  in                                                              
judgment  could end  up in  criminal  court. Criminal  convictions                                                              
have  very  real  consequences  and  can result  in  the  loss  of                                                              
reputation, loss  of a job,  loss of  freedom or loss  of savings.                                                              
With this in mind, ask yourself whether  you would want a criminal                                                              
court judge to make an important  decision about your life to base                                                              
that decision  on his  best interpretation  of the  law or  on the                                                              
political and personal consequences  that face him if he issues an                                                              
unpopular decision.                                                                                                             
SENATOR PHILLIPS didn't think the  founding fathers foresaw having                                                              
an appellate court when the Constitution  was established in 1958.                                                              
MR.  CHRISTENSEN  explained  the   founding  fathers  created  the                                                              
superior court  and the  supreme court.  They created a  retention                                                              
term of  six years for  the superior court  and ten years  for the                                                              
Supreme  Court.   In  the  Constitution,  they   stated  that  the                                                              
Legislature  could  create  additional courts  because  they  knew                                                              
there  would  be  the  need  to   create  additional  courts.  The                                                              
Legislature quickly  created a district  court and then  waited 20                                                              
years  to create  a court  of appeals.  When  the Legislature  did                                                              
that, it  gave that  court a  retention term  that fit within  the                                                              
scheme  that already  existed, ten  years for  the supreme  court,                                                              
eight years for  the court of appeals, six years  for the superior                                                              
court and four  years for the district court.  The appellate court                                                              
has a  longer retention  period because  judicial independence  is                                                              
more  important at  that  level. The  Legislature  decided on  the                                                              
eight-year  term for  the court of  appeals because  that was  the                                                              
national average.                                                                                                               
SENATOR PHILLIPS averaged  the retention terms for  merit and non-                                                              
merit  western  states at  six  and  one-half  years. He  said  he                                                              
related to the west coast more than the east coast.                                                                             
MR.  CHRISTENSEN  replied  the  bill  sponsor  said  the  national                                                              
average was appropriate and he was  simply pointing out that while                                                              
the national  average is  appropriate, it's  not what the  sponsor                                                              
thought  it was.  He noted  that many  of the  western states  use                                                              
partisan elections,  which is a  system he doesn't  believe should                                                              
be held as a model.                                                                                                             
Another point  he thought should  be noted that was  not reflected                                                              
in the statistics  is that not only is Alaska's  retention term at                                                              
the national  average of eight  years but it  also has a  two tier                                                              
process.  When  first  appointed,   a  judge  stands  for  initial                                                              
retention at the  first election held more than  three years after                                                              
assuming  office.  Most  states don't  have  this  two-tier  term.                                                              
Generally, a  judge serves  the same amount  of time in  the first                                                              
term as  in all subsequent  terms. For most  of the states  with a                                                              
shorter  term  than Alaska,  that  is  their  first term  not  the                                                              
initial term, which makes their term longer that Alaska's.                                                                      
SENATOR  HALFORD asked  how many  states have  appointment by  the                                                              
Governor  with discretion  between a  list of  people and with  no                                                              
confirmation  by  either body  of  the  Legislature or  any  other                                                              
MR. CHRISTENSEN  didn't know the  exact answer but did  know there                                                              
are 18 states  that have some  type of merit selection  system. In                                                              
all of those it is appointment by  the Governor. The data provided                                                              
by Senator Donley's  staff lists two court of appeals  that are in                                                              
states that have legislative confirmation  of a merit appointment,                                                              
but he didn't know whether that was accurate.                                                                                   
CHAIRMAN THERRIAULT  asked about  the corrections Mr.  Christensen                                                              
made to the sponsor's data.                                                                                                     
MR. CHRISTENSEN  said he  made corrections to  the data  that made                                                              
his point  as well  as corrections  that worked  to the  sponsor's                                                              
SENATOR DONLEY stated  he believes the combination of  the term of                                                              
office plus  the lack  of accountability  that comes from  neither                                                              
confirmation  nor direct  election makes  the eight-year  term for                                                              
the  appellate   court  excessive.   He  thought  six   years  was                                                              
reasonable. He  said he feels very  confident that if  the average                                                              
Alaskan citizen  were asked,  they would  like the opportunity  to                                                              
vote on  judges more  frequently so they  are more accountable  to                                                              
the election process.                                                                                                           
He restated  his concern  regarding the  combination of  length of                                                              
time  and type  of retention  system.  The data  provided for  the                                                              
initial hearing  dealt with  the merit states  and didn't  look at                                                              
the numbers  in the  other states.  When you look  at it  from the                                                              
point of  view of time in  office and over all  accountability, he                                                              
thought the weight of evidence is  persuasive that a six-year term                                                              
is  appropriate  when  there  is no  confirmation  process  or  an                                                              
election process. He  accepted the new data but  didn't think that                                                              
it led to the same conclusion that  the court system announced and                                                              
he didn't  think it refuted his  concern about the  combination of                                                              
the two points.                                                                                                                 
CHAIRMAN THERRIAULT called for questions from committee members.                                                                
SENATOR DAVIS asked  for the basis for his belief  that the public                                                              
would like  to see this change.  She said she hasn't  received any                                                              
letters that  reflect dissatisfaction  with the current  system or                                                              
the retention terms  and she saw no letters to that  effect in the                                                              
bill packet.  The information she  read indicated this is  what he                                                              
believes and not necessarily what the public might want.                                                                        
SENATOR DONLEY said he could try  to find the resources to conduct                                                              
a public opinion poll but he feels  confident from his discussions                                                              
the public would  like the opportunity to vote. He  compared it to                                                              
the  elected  attorney  general  issue  and  said  a  majority  of                                                              
Alaskans have repeatedly  said they want the opportunity  to elect                                                              
their attorney  general; they like  to have elected  officials. He                                                              
said Alaska has  the fewest elected officials of  any state in the                                                              
union. Citizens in every other state  but one have the opportunity                                                              
to elect more  of their public officials. Public  opinion polls in                                                              
Alaska  indicated  voters  like the  opportunity  to  elect  their                                                              
officials and he  though they would like to do  so more frequently                                                              
in  this case.  He thought  he  could find  some  polling data  to                                                              
support his opinion.                                                                                                            
SENATOR DAVIS  replied that might  be the case, but  bill sponsors                                                              
usually  present lists  of people that  support their  legislation                                                              
and  she sees  none of  that for  this  bill. With  regard to  his                                                              
statement  that the  public often  says they would  like to  elect                                                              
their officials,  she said she has  been in the state  long enough                                                              
to know that if  the public wanted to do that  then that's the way                                                              
it would  be done.  She knows  there are  people that support  the                                                              
sponsor's view on the issue, but  she doesn't know that the masses                                                              
support his view.                                                                                                               
SENATOR DONLEY  said if that were  true then the  attorney general                                                              
would now  be elected. He thought  that every public  opinion poll                                                              
shows  very strong  support  for an  elected  attorney general  in                                                              
Alaska. This  hasn't happened because  it's hard to get  change in                                                              
the system. Even if a majority of  the people support a particular                                                              
thing, the system  is designed to require a super  majority to get                                                              
major or systemic changes accomplished.                                                                                         
SENATOR DAVIS said  perhaps she should have stated  it differently                                                              
because she  hasn't heard  the public discuss  the topic  or heard                                                              
that they are  calling Legislators and trying to  get the issue on                                                              
the ballot.  She said it hasn't  happened in the thirty  years she                                                              
has been in Alaska.                                                                                                             
SENATOR DONLEY  replied, "…it tends to  be the people who  have an                                                              
interest in the system who are rating  the system and not just the                                                              
average  citizen." Having  attorneys  rate judges  isn't the  most                                                              
objective and accurate means of the  rating because it's very hard                                                              
to  criticize our  judiciary.  "I  have people  talk  to me  quite                                                              
frequently  that  really want  to  remain anonymous  because  they                                                              
don't want retribution… They're willing  to come to me and tell me                                                              
things but when I ask them to come  forward and talk about it they                                                              
say, 'No, I  don't want some judge  mad at me.' They're  scared of                                                              
that.  I make  my living practicing law; you think  I want to make                                                              
judges mad at me? Of course not,  I just really believe the public                                                              
deserves an  opportunity to have  some accountability at  a higher                                                              
degree than this state currently presents for our judiciary."                                                                   
SENATOR DAVIS asked for the makeup  of the Alaska Judicial Council                                                              
and whether it was comprised of a majority of attorneys.                                                                        
MR. COHN replied  it has three attorneys, three  non-attorneys and                                                              
the Chief  Justice of the Supreme  Court who sits as  chairman and                                                              
ex officio.  He only votes in the  case of a tie when  the council                                                              
must make a decision.                                                                                                           
SENATOR PHILLIPS asked whether the Chief Justice is an attorney.                                                                
MR. COHN replied he is an attorney.                                                                                             
SENATOR  PHILLIPS said  that means  there are  four attorneys  and                                                              
three non-attorneys on the council.                                                                                             
CHAIRMAN THERRIAULT  asked if he heard correctly  that adoption of                                                              
the CS would increase the fiscal note.                                                                                          
MR. COHN replied  the CS would reduce the size of  the fiscal note                                                              
and he could  submit a revised fiscal  note to show the  impact of                                                              
the CS.                                                                                                                         
CHAIRMAN  THERRIAULT  announced   there  was  the  prepared  State                                                              
Affairs CS and he  had no amendments to that CS.  He asked whether                                                              
there were any amendments from committee members.                                                                               
SENATOR DAVIS  said she  did not have  an amendment but  she would                                                              
like to see a copy of the fiscal note.                                                                                          
CHAIRMAN THERRIAULT asked for the will of the committee.                                                                        
SENATOR  PHILLIPS  made  a  motion   to  move  CSSB  159(STA)  and                                                              
accompanying fiscal note from committee.                                                                                        
CHAIRMAN  THERRIAULT said  there  should be  a  notation that  the                                                              
fiscal note will be adjusted to reflect the change.                                                                             
SENATOR DAVIS objected to the motion.                                                                                           
CHAIRMAN  THERRIAULT asked  Senator  Davis whether  she wanted  to                                                              
speak to her objection.                                                                                                         
SENATOR  DAVIS said  she  believed the  sponsor  was very  sincere                                                              
about what he thought needed to be  done. However, she did not see                                                              
the need for  the change and didn't believe the  balance should be                                                              
upset without  more input. The  information the sponsor  presented                                                              
didn't convince  her that  it was the  right thing to  do. Perhaps                                                              
she could support  the issue at a  later time but she  didn't have                                                              
enough to convince her that the status  quo wasn't working because                                                              
she hasn't heard expressions of dissatisfaction  and the retention                                                              
terms in  Alaska aren't  that different from  those of  many other                                                              
states. The current balance could  be upset if judges had to stand                                                              
for   retention  election   more   frequently.  Sometimes   having                                                              
individuals  in  public  office  for longer  periods  of  time  is                                                              
helpful because they grow as they serve.                                                                                        
CHAIRMAN THERRIAULT  called for a roll call on the  motion to move                                                              
the bill from committee with individual recommendations.                                                                        
Senator Phillips,  Senator Halford  and Chairman Therriault  voted                                                              
yea and Senator Davis voted nay.                                                                                                
CSSB    159(STA)   moved    from    committee   with    individual                                                              
recommendations. A  revised fiscal note  would be provided  to the                                                              
next committee of referral.                                                                                                     
SIDE B                                                                                                                          
        SJR 43-MAINTENANCE OF EFFORT ON FEDERAL PROGRAMS                                                                    
SENATOR DONLEY explained a maintenance  of effort requirement is a                                                              
condition that comes  with some federal funding  programs and says                                                              
that if a  state were to reduce  spending on a  particular program                                                              
then  there may  be a  reduction in  the amount  of federal  funds                                                              
received. The maintenance  of effort requirements are  not all the                                                              
same,  which state  budgets that  are heavily  dependent on  those                                                              
federal funds.                                                                                                                  
It  is challenging  for  states  to do  their  best  based on  the                                                              
highest and  best need  in any  given year  because even  though a                                                              
state  wanted to  prioritize a  different  level of  funding in  a                                                              
different  program, the  maintenance  of effort  requirements  may                                                              
inhibit that  because of  the potential  loss of federal  funding.                                                              
This entices  the state  to continue funding  at a level  that may                                                              
not be the most appropriate level in that particular year.                                                                      
The  resolution requests  the United  States Congress  to grant  a                                                              
two-year moratorium on the maintenance  of effort requirements for                                                              
those  states  receiving  federal funds.  States  could  therefore                                                              
adjust  their budgets  without  being  fearful of  losing  federal                                                              
CHAIRMAN  THERRIAULT  asked  Senator  Donley  whether  he  thought                                                              
copies should be  sent to every state governor or  to the heads of                                                              
the legislature  in every  state to  alert them  and try  to build                                                              
nation wide support.                                                                                                            
SENATOR DONLEY  thought copies should  be sent to  the legislative                                                              
leadership  since  they  would  be   the  ones  to  adopt  similar                                                              
legislation  if  they  thought it  meritorious.  He  also  thought                                                              
informing the National Conference  of State Legislators (NCSL) and                                                              
other  national  organizations of  legislatures  would  be a  good                                                              
CHAIRMAN  THERRIAULT asked  him  to verify  that  this would  give                                                              
states a period of time in which  they could adjust their spending                                                              
to  suit  their  particular  situation   after  which  they  could                                                              
establish a new level for maintenance of effort.                                                                                
SENATOR DONLEY replied that was the idea.                                                                                       
SENATOR  PHILLIPS asked  Chairman Therriault  whether he  wanted a                                                              
conceptual amendment.                                                                                                           
CHAIRMAN THERRIAULT replied he did.                                                                                             
SENATOR PHILLIPS made a motion to  adopt a conceptual amendment to                                                              
send the  resolution to the presiding  officers of each  of the 49                                                              
CHAIRMAN THERRIAULT  said generic language  would be used  so each                                                              
recipient wouldn't necessarily be named.                                                                                        
There being no objection, Amendment #1 was adopted.                                                                             
SENATOR PHILLIPS asked whether he wanted to include NCSL.                                                                       
CHAIRMAN  THERRIAULT thought  it  might be  best to  send them  an                                                              
explanatory letter from the Finance  Committee with the resolution                                                              
SENATOR DONLEY said that was acceptable to him.                                                                                 
SENATOR  PHILLIPS made  a motion  to  move CSSJR  43 and  attached                                                              
fiscal note from committee with individual recommendations.                                                                     
There being no objection, CSSJR 43(STA) moved from committee.                                                                   
There being no  further business before the committee,  the Senate                                                              
State Affairs Committee meeting was adjourned at 4:55 p.m.                                                                      

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