02/23/2023 03:30 PM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB28 | |
| SB32 | |
| SB31 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 28 | TELECONFERENCED | |
| *+ | SB 31 | TELECONFERENCED | |
| *+ | SB 32 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
February 23, 2023
3:31 p.m.
MEMBERS PRESENT
Senator Scott Kawasaki, Chair
Senator Matt Claman, Vice Chair
Senator Jesse Bjorkman
Senator Bill Wielechowski
Senator Kelly Merrick
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 28
"An Act relating to workplace violence protective orders;
relating to the crime of violating a protective order; relating
to the powers of district judges and magistrates; amending Rules
4 and 65, Alaska Rules of Civil Procedure, and Rule 9, Alaska
Rules of Administration; and providing for an effective date."
- HEARD & HELD
SENATE BILL NO. 32
"An Act prohibiting the use of chokeholds by peace officers; and
relating to justification of use of force by peace officers."
- HEARD & HELD
SENATE BILL NO. 31
"An Act relating to the selection, retention, and rejection of
judicial officers for the court of appeals and the district
court and of magistrates; relating to the duties of the judicial
council; and relating to the duties of the Commission on
Judicial Conduct."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 28
SHORT TITLE: WORKPLACE VIOLENCE PROTECTIVE ORDERS
SPONSOR(s): SENATOR(s) CLAMAN
01/18/23 (S) PREFILE RELEASED 1/9/23
01/18/23 (S) READ THE FIRST TIME - REFERRALS
01/18/23 (S) STA, JUD
02/23/23 (S) STA AT 3:30 PM BELTZ 105 (TSBldg)
BILL: SB 32
SHORT TITLE: CHOKEHOLD BAN
SPONSOR(s): SENATOR(s) GRAY-JACKSON
01/18/23 (S) PREFILE RELEASED 1/13/23
01/18/23 (S) READ THE FIRST TIME - REFERRALS
01/18/23 (S) STA, JUD
02/23/23 (S) STA AT 3:30 PM BELTZ 105 (TSBldg)
BILL: SB 31
SHORT TITLE: SELECTION AND REVIEW OF JUDGES
SPONSOR(s): SENATOR(s) SHOWER
01/18/23 (S) PREFILE RELEASED 1/13/23
01/18/23 (S) READ THE FIRST TIME - REFERRALS
01/18/23 (S) STA, JUD
02/23/23 (S) STA AT 3:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
LIZZIE KUBITZ, Staff
Senator Matt Claman
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented the sectional analysis for SB 28
on behalf of the sponsor.
BRENDA STANFIELD, Executive Director
Alaska Network on Domestic Violence and Sexual Assault
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 28.
SENATOR ELVI GRAY-JACKSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 32.
BESSE ODOM, Staff
Senator Elvi Gray-Jackson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented the sectional analysis for SB 32
on behalf of the sponsor.
MICHAEL PATTERSON, Founder
Party for Socialism and Liberation
Anchorage, Alaska
POSITION STATEMENT: Provided invited testimony in support of SB
32.
DANIEL CASNER, representing self
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of SB 32.
CYNTHIA GACHUPIN, Member
Party for Socialism and Liberation
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 32.
MORGAN LIM, Lobbyist
Planned Parenthood Alliance Advocates
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 32.
AMANA MBISE, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 32.
JASMIN SMITH, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 32.
LIZ LYKE, representing self
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of SB 32.
PHILLIP MOSER, representing self
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 32 with
amendments.
CAPTAIN CORNELIUS SIMS, Commander
Division of Alaska State Troopers
Department of Public Safety
Anchorage, Alaska
POSITION STATEMENT: Answered questions during a hearing on SB
32.
JOSEPH GAMACHE, Executive Director
Alaska Police Standards Council
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on SB
32.
MIKE SHOWER, District O
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 31.
BETTY JO MOORE, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 31.
LOREN LEMAN, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 31.
FRITZ PETTYJOHN, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 31.
ACTION NARRATIVE
3:31:50 PM
CHAIR SCOTT KAWASAKI called the Senate State Affairs Standing
Committee meeting to order at 3:31 p.m. Present at the call to
order were Senators Merrick, Claman, Wielechowski, Bjorkman, and
Chair Kawasaki.
SB 28-WORKPLACE VIOLENCE PROTECTIVE ORDERS
3:33:18 PM
CHAIR KAWASAKI announced the consideration of SENATE BILL NO. 28
"An Act relating to workplace violence protective orders;
relating to the crime of violating a protective order; relating
to the powers of district judges and magistrates; amending Rules
4 and 65, Alaska Rules of Civil Procedure, and Rule 9, Alaska
Rules of Administration; and providing for an effective date."
3:34:18 PM
SENATOR MATT CLAMAN, District H, sponsor of SB 28, introduced
the legislation paraphrasing the following sponsor statement:
When individuals make credible threats of violence
against an employer's worksite or an employee, the
attorney representing the employer may need to file a
civil lawsuit and ask for a temporary restraining
order to protect the business. It can take several
days to complete and obtain the order. In contrast,
people seeking a domestic violence restraining order
can usually get the court order within one day.
Senate Bill 28, modeled after Alaska's domestic
violence protective order process, allows an employer
to file a petition for a protective order against an
individual who the employer reasonably believes
committed an act of violence against the employer or
an employee, or made a threat of violence against the
employer or an employee that can reasonably be
construed as a threat that may be carried out at the
employer's workplace.
The intent of Senate Bill 28 is to help prevent
incidents such as the fatal shooting of a hospital
employee by an ex-employee at the Soldotna Central
Peninsula General Hospital in November 2008. Eight
states have laws providing for the issuance of
workplace restraining orders (WROs) and three states
have the option for employers to file for the same
type of orders that are available to victims. Several
others are currently considering related legislation.
Senate Bill 28 gives employers a more effective way to
protect their workplace and their employees from
threats of violence.
3:36:19 PM
LIZZIE KUBITZ, Staff, Senator Matt Claman, Alaska State
Legislature, Juneau, Alaska, presented the sectional analysis
for SB 28 on behalf of the sponsor.
Section 1
AS 11.56.740. Violating a protective order.
Amends AS 11.56.740(a) by adding a new subsection (4)
to specify that a person commits the crime of
violating a protective order if the person knowingly
commits or attempts to commit an act that violates the
provisions listed under the workplace violence
protective order statutes.
Section 2
AS 11.56.740. Violating a protective order.
Amends AS 11.56.740(c) by adding the workplace
violence protective order statutes to the meaning of
"protective order."
Section 3
AS 18.65.530. Mandatory arrest for crimes involving
domestic violence, violation of protective orders, and
violation of conditions of release.
Amends AS 18.65.530(a) by clarifying that the
mandatory arrest statute for crimes involving domestic
violence, violation of protective orders, and
violation of conditions of release is subject to the
requirements of sec. 1.
Section 4
AS 18.65.540. Central registry of protective orders.
Amends AS 18.65.540(a) to add the workplace violence
protective order statutes to the central registry of
protective orders maintained by the Department of
Public Safety.
3:37:37 PM
Section 5
AS 18.65.540. Central registry of protective orders.
Amends AS 18.65.540(b) to add the workplace violence
protective order statutes to the list of protective
orders a peace officer enters into the central
registry within 24 hours of receiving.
Section 6
Amends AS 18.65 to add new section: "Article 12A.
Workplace Violence Protective Orders."
Sec. 18.65.875. Protective orders; eligible
petitioners; relief.
Section (a) gives employers the ability to file a
petition for a protective order against an individual
who the employer reasonably believes: (1) committed an
act of violence against the employer or an employee;
or (2) made a threat of violence against the employer
or an employee that can reasonably be construed as a
threat that may be carried out at the employer's
workplace.
Section (b) specifies that the court shall schedule a
hearing and provide at least 10 days' notice to the
respondent.
Section (c) details prohibited behavior of the
respondent after the protective order is issued.
Section (d) describes the court's responsibilities
related to issuing a protective order.
Section (e) clarifies a court may not deny a petition
for a protective order solely because of a lapse of
time between an act of violence or a threat of
violence and the filing of the petition.
Sec. 18.65.877. Ex parte protective orders for
workplace violence.
Gives employers the ability to file a petition for an
ex parte protective ordera temporary order that would
grant immediate protection.
Sec. 18.65.880. Modification of workplace violence
protective order.
Creates a process for either the petitioner or the
respondent to request modification of a protective
order.
Sec. 18.65.885.
Specific protective orders. Specifies that an
invitation by the petitioner or a named designated
employee of the petitioner to have the prohibited
contact or to be present at or enter the workplace,
residence, vehicle, or other place does not in any way
invalidate or nullify the protective order.
Sec. 18.65.890. Forms for petitions and orders; fees.
Clarifies that the court system will prepare forms for
petitions, protective orders, and instructions for
their use by an employer seeking a protective order.
Sec. 18.65.895. Service of process.
Clarifies that protective orders should be promptly
served and executed.
3:40:01 PM
Sec. 18.65.897. Civil liability
Creates civil liability provisions.
Sec. 18.65.899. Definitions
Makes the definitions of "course of conduct,"
"employee," "employer," "threat of violence,"
"violence," and "workplace" apply to the workplace
violence protective statutes.
Section 7
AS 22.15.100. Functions and powers of district judge
and magistrate.
Amends AS 22.15.100(9) by adding a new section (C) to
give district judges and magistrates the power to
issue a protective order in cases involving workplace
violence.
Section 8
Uncodified law Indirect court rule amendments
Specifies amendments to: Rule 4, Alaska Rules of Civil
Procedure, and Rule 9, Alaska Rules of Administration,
relating to fees and service of process for a
workplace violence protective order; and Rule 65,
Alaska Rules of Civil Procedure, by changing the
method for obtaining and the timing of temporary
restraining orders.
Section 9
Uncodified law - applicability
Makes sec. 8 conditional on approval by the two-thirds
majority vote of each house required by art. IV, sec.
15, Constitution of the State of Alaska.
Section 10
Effective Date
If sec. 9 takes effect, it takes effect on January 1,
2024.
3:41:30 PM
At ease
3:42:22 PM
CHAIR KAWASAKI reconvened the meeting and listed the individuals
who were available to answer questions.
3:43:00 PM
CHAIR KAWASAKI opened public testimony on SB 28.
3:43:41 PM
BRENDA STANFIELD, Executive Director, Alaska Network on Domestic
Violence and Sexual Assault (ANDVSAA), Juneau, Alaska, spoke of
the fear that victims experience when they are threatened at
home or in the workplace. She noted that getting a trespass
order doesn't help if the person stands just off the victim's
property and isn't committing a crime. Law enforcement won't
respond in those situations. ANDVSAA victim service providers
have reported that this can be a particular problem in rural
communities.
MS. STANFIELD stated that SB 28 provides a mechanism for
employers to protect themselves and their staff when somebody
has made a threat against an employer's workplace or an
employee. It will help to reduce the fear that victims
experience. She said ANDVSAA is working closely with the sponsor
and is very supportive of the bill.
3:45:23 PM
CHAIR KAWASAKI closed public testimony on SB 28 and held the
bill in committee.
3:45:52 PM
At ease
SB 32-CHOKEHOLD BAN
3:47:25 PM
CHAIR KAWASAKI reconvened the meeting and announced the
consideration of SENATE BILL NO. 32 "An Act prohibiting the use
of chokeholds by peace officers; and relating to justification
of use of force by peace officers."
3:47:49 PM
SENATOR ELVI GRAY-JACKSON, Alaska State Legislature, Juneau,
Alaska, sponsor of SB 32, thanked the hardworking peace officers
and office staff that provide the services that protect the
lives and welfare of the people in Alaskan communities. She
described the genesis of this and six other bills that she and
former Senator Tom Begich worked on together to "turn pain into
progress" (TPIP). The bills employ eight specific policies that
have been proven to reduce police violence by as much as 72
percent. Last year she was honored to see one of the bills
signed into law.
SENATOR GRAY-JACKSON continued to introduce SB 32 by reading the
sponsor statement.
Police use numerous methods to restrain and limit the
movement and overall activity of someone who possess a
danger to themselves or to others (including the
police officer). One of the most common restraints are
carotid and a tracheal choke. Both restraints impede
breathing and circulation of blood. If these
restraints are used incorrectly, death through
asphyxiation may occur. Throughout the United States,
there are cases of the misuse of chokeholds. Senate
Bill (SB) 32 would assist in reducing the rate of
chokeholds used incorrectly. SB 32 would further seek
to improve police to community relationships by
addressing a long-standing issue around the use of
force.
3:51:27 PM
BESSE ODOM, Staff, Senator Elvi Gray-Jackson, Alaska State
Legislature, Juneau, Alaska, presented the sectional analysis
for SB 32 on behalf of the sponsor.
Section 1: This amends AS 11.81.370, the Statute
regarding use of force by a peace officer in making an
arrest or terminating an escape by adding a new
subsection that would prohibit the use of potentially
lethal restraints.
SENATOR MERRICK asked whether she knew how many law enforcement
agencies in the state still allow the use of chokeholds.
SENATOR GRAY-JACKSON said no.
CHAIR KAWASAKI asked whether the term "peace officer" included
Village Public Safety Officers (VPSOs) and correctional
officers.
SENATOR GRAY-JACKSON said yes.
3:53:34 PM
MS. ODOM presented a PowerPoint relating to SB 32. She spoke to
slide 2, "National 8 Can't Wait Campaign."
• We were inspired to model local legislation after
the widely-recognized national 8 can't wait
campaign:
square4 Bans the use of chokeholds and strangleholds
square4 Require de-escalation
square4 Require warning before shooting
square4 Require exhausting all alternatives before
shooting
square4 Duty to intervene (by officers that observe
other officers violating practice standards)
square4 Ban shooting at moving vehicles
square4 Require a use of force continuum
square4 Require comprehensive reporting (by officers
each time they use force or threaten to use
force
• We recognize that the national campaign wouldn't
fit the unique needs of Alaska, so we worked with
various stakeholders to create a bill that was
all encompassing of Alaska's unique needs.
MS. ODOM advanced to slide 3, "Meeting w/Stakeholders."
• Throughout the process of drafting the bills, we
met with and received recommendations from the
following stakeholders:
• NOBLE (National Organization of Black Law
Enforcement Executives)
• APDEA (Anchorage Police Department Employees
Association)
• APD (Anchorage Police Department)
• PSEA (Public Safety Employees Association)
MS. ODOM reviewed slide 4, "Bill Objectives."
• Prohibits peace officers from knowingly using a
restraint that impedes another person's breathing
or blood circulation that would likely cause a
loss of consciousness
square4 This includes carotid restraint, tracheal
choke, and others that result in the
aforementioned conditions.
• Chokeholds are permitted in situations where
deadly force is authorized by law.
3:55:33 PM
MS. ODOM advanced to slide 5, "What Sort of Chokeholds Will be
Prohibited." She reported that a survey of the nation's largest
police departments' use-of-force policies found that 71 percent
prohibit chokeholds and 68 percent prohibit carotid holds.
Chokehold
Also called an arm bar hold. Applies pressure to the
trachea, restricting airways and stopping breathing.
Carotid hold
Vascular hold, sleeper hold or stranglehold. Applies
pressure to the carotid arteries, restricting blood
flow to the brain and causing loss of consciousness.
MS. ODOM reviewed slide 6, "What We Know About the Bans on
Chokeholds."
[Original punctuation provided.]
• A Post survey of the 65 largest U.S. police
departments found that 46 prohibit chokeholds in
their use-of-force policies, while 44 prohibit
carotid holds in those policies
• Connecticut
• California (San Diego, Los Angeles, etc.)
• Florida (Broward County, Miami etc.)
• New York
• Washington (Seattle etc.)
• Texas (Austin, Houston, Dallas etc.)
• Illinois (Chicago etc.)
• Colorado (Denver etc.)
• Arizona (Phoenix etc.)
• Delaware
• Iowa
3:56:46 PM
CHAIR KAWASAKI turned to invited testimony on SB 32.
3:57:00 PM
MICHAEL PATTERSON, Founder, Party for Socialism and Liberation,
Anchorage, Alaska, thanked the committee for hearing SB 32 so
quickly and the sponsor for being a consistent leader on the
important issue relating to use of force policies for law
enforcement agencies. He asked the committee to think about what
it means to be choked or strangled. It is a violent act and the
individual may feel they're going to die. Even if a law
enforcement officer has training, it can be dangerous employing
these methods of restraint.
MR. PATTERSON stated that SB 32 will modernize Alaska's law and
he believes it will show the people of Alaska that the state
takes accountability and transparency very seriously. It will
help people regain trust in law enforcement.
4:03:42 PM
CHAIR KAWASAKI opened public testimony on SB 32.
4:03:51 PM
DANIEL CASNER, representing self, Fairbanks, Alaska, testified
in support of SB 32. He is a combat veteran who believes there
is no place for chokeholds in peace officer interactions of any
kind. They are not an appropriate solution for restraint and can
cause serious bodily harm and even death. He urged the committee
to move SB 32 forward.
4:05:31 PM
CYNTHIA GACHUPIN, Member, Party for Socialism and Liberation,
Anchorage, Alaska, testified in support of SB 32. She
articulated her concerns if the bill does not move forward. She
said the use of chokeholds has no place in law enforcement.
There are many ways to restrain someone without using
potentially lethal means of restraint. She said that as a
community member and mother it doesn't sit right that law
enforcement officers can choose whether or not to use this
potentially lethal means of restraint. She asked the committee
to move SB 32 forward.
4:08:47 PM
MORGAN LIM, Lobbyist, Planned Parenthood Alliance Advocates,
Juneau, Alaska, read the following prepared testimony in support
of SB 32.
[Original punctuation provided.]
Thank you Chair Kawasaki and Members of the Senate
State Affairs Committee. My name is Morgan Lim, I'm a
Juneau resident, and I am testifying today on behalf
of Planned Parenthood Alliance Advocates Alaska.
PPAA strongly supports Senate Bill 32, a bill that
would limit the use of force by peace officers in
Alaska. PPAA believes all people should live free from
violence, and stands with Black, Indigenous, people of
color ("BIPOC") communities as they demand change and
seek to create communities that are safe and
sustainable.
To truly achieve reproductive justice, all people must
not only have the right to choose if and when to
become parents, but also the right to raise their
children in a safe and healthy environment. It is the
same over-policing of and violence towards Black and
Indigenous bodies and their communities that makes the
promise of reproductive freedom unattainable.
As our state and country continue to grapple with
police brutality, SB 32 takes a step in the right
direction towards reducing police use of force.
According to the Mapping Police Violence database,
Alaska is tragically home to the second highest rate
of police killings in the country and has the second
highest rate of police violence against Black and
Indigenous people. About one-in-three people killed by
the police is an Alaska Native person, and a Black
person in Alaska is 3.3 times more likely to be killed
by police as a white person.
Additionally, the rates of incarceration in Alaska
have grown dramatically in the last several decades,
with Black and American Indian & Alaska Native people
being incarcerated at four to five times the rate of
white people in Alaska. Approximately 40 percent of
people incarcerated in Alaska identify as American
Indian & Alaska Native people despite only making up
about 15 percent of the state's population. Similarly,
7 percent of those incarcerated were Black people
despite only constituting 3 percent of Alaska's
population.
This over-policing of BIPOC communities, the
criminalization of BIPOC people, and police violence
imposes significant transgenerational trauma, directly
harming the health of these families and their
descendants.
We all deserve to live in a world where we are equally
protected and have access to the resources we need to
be healthy, safe, and free from harm. PPAA thanks you
for the opportunity to testify on this important piece
of legislation and we urge the committee to move it
forward.
4:11:38 PM
AMANA MBISE, representing self, Anchorage, Alaska, stated that
he is a social worker and professor of social work who is
speaking in support of SB 32. He thanked the sponsor for
introducing the legislation. He opined that the use of
chokeholds is contradictory to the notion of peace. As a Black
person he has seen chokeholds and other means of restraint cause
the death of his family members. He expressed hope that the
committee would pass the bill expeditiously. Doing so will send
a message that the legislature cares about stopping police
violence.
4:14:13 PM
JASMIN SMITH, representing self, Anchorage, Alaska, testified in
support of SB 32. She is a business owner and community
organizer. She thanked the sponsor and staff for their efforts
on SB 32. She echoed the sentiments of previous speakers that
accountability and rebuilding trust matters. It would be a sign
of solidarity particularly for communities of color if SB 32
were to pass.
4:15:57 PM
LIZ LYKE, representing self, Fairbanks, Alaska, testified in
support of SB 32. She stated that the bill is a step in the
right direction to make law enforcement accountable. She thanked
the committee for hearing the bill and urged its passage.
4:16:47 PM
PHILLIP MOSER, representing self, Juneau, Alaska, stated that he
supports SB 32, but would like significant amendments because it
doesn't have teeth. He opined that chokeholds are a small part
of the epidemic of police brutality. The bill doesn't address
what constitutes authorization to use deadly force. He would
like the bill to include adequate consequences and options to
use less deadly alternatives.
4:19:43 PM
SENATOR CLAMAN asked Captain Sims to discuss the trooper policy
on the use of chokeholds, whether troopers receive training on
the use of chokeholds, and how the exception would work where
deadly force is allowed.
4:20:29 PM
CAPTAIN CORNELIUS SIMS, Commander, Division of Alaska State
Troopers, Department of Public Safety, Anchorage, Alaska, stated
that DPS policy and training is in line with SB 32. The use of
carotid restraint would only be used in situations where deadly
force is authorized.
SENATOR CLAMAN asked for examples of scenarios a trooper might
encounter in the field where deadly force and the use of the
chokehold would be authorized and where it would not be allowed.
CAPTAIN SIMS answered that if a trooper or law enforcement
officer's life were in danger, or they were in fear for their
life, the use of deadly force would be authorized. It would not
be authorized in situations where a person refused to exit their
vehicle or comply with an officer's demand to put their hands
behind their back.
SENATOR CLAMAN asked whether a chokehold would be authorized if
a person physically fights back when an officer is trying to
make an arrest.
CAPTAIN SIMS replied it would be authorized if the officer
feared their life was in danger.
SENATOR CLAMAN asked whether an officer might be authorized to
use a chokehold in a situation where they were intervening in a
fight.
CAPTAIN SIMS replied that the law currently allows an officer to
use such restraint if they can articulate that a person's life
was in danger.
SENATOR CLAMAN asked if the Department of Public Safety (DPS)
had a position on SB 32.
4:24:02 PM
CAPTAIN SIMS replied the department was neutral, but the bill
was in line with DPS policy.
SENATOR CLAMAN asked Joseph Gamache if the language in SB 32 was
consistent with the standards the Alaska Police Standards
Council had adopted.
4:24:20 PM
JOSEPH GAMACHE, Executive Director, Alaska Police Standards
Council (APSC), Anchorage, Alaska, confirmed that SB 32 was in
line and consistent to APSC standards.
SENATOR CLAMAN asked whether APSC permits the use of the carotid
hold only in situations in which deadly force is authorized and
none other.
MR. GAMACHE responded that APSC has a broader overview of the
law enforcement agencies throughout Alaska. Individual
departments have their own policies on when the use of deadly
force would be authorized.
SENATOR CLAMAN asked whether the Alaska Police Standards Council
had a position on SB 32.
MR. GAMACHE replied that APSC was neutral on SB 32.
4:26:01 PM
SENATOR WIELECHOWSKI asked Mr. Gamache if there were any
statistics relating to police officers in Alaska using
chokeholds.
MR. GAMACHE said he didn't have the statistics but he would
follow up with an answer.
SENATOR WIELECHOWSKI asked if he was aware of any disciplinary
actions that had been taken against Alaska police officers for
the inappropriate use of chokeholds.
MR. GAMACHE answered that he wasn't aware of any disciplinary
actions involving the use of a chokehold that had risen to the
APSC level.
SENATOR CLAMAN asked the sponsor or staff if APD's policy was
similar to DPS's policy; they may train for the use of
chokeholds but only authorize the use in situations where deadly
force is allowed. Alternatively, he asked if APD's policy
specifically does not allow the use of chokeholds.
4:27:56 PM
MS. ODOM stated that APD does not utilize chokeholds.
4:28:14 PM
CHAIR KAWASAKI closed public testimony on SB 32 and held the
bill in committee.
4:28:35 PM
At ease
SB 31-SELECTION AND REVIEW OF JUDGES
4:30:06 PM
CHAIR KAWASAKI reconvened the meeting and announced the
consideration of SENATE BILL NO. 31 "An Act relating to the
selection, retention, and rejection of judicial officers for the
court of appeals and the district court and of magistrates;
relating to the duties of the judicial council; and relating to
the duties of the Commission on Judicial Conduct."
He advised that testimony on SB 31 could be submitted to
[email protected]. He invited the sponsor to
introduce the bill.
4:31:18 PM
SENATOR MIKE SHOWER, District O, Alaska State Legislature,
Juneau, Alaska sponsor of SB 31, advised that a committee
substitute was forthcoming. He introduced the bill by reading
the sponsor statement.
[Original punctuation provided.]
Alaska's constitution is clear, there are two tiers of
judges.
1. Constitutional Judges: Superior Court Judges and
Supreme Court Justices must be vetted by the
Judicial Council (Council) and the Governor can
only select from a list of two or more names
submitted by the Council. SB 31 holds
constitutional judges harmless. The operating
authority of this provision is: Art IV Sec 5. "The
Governor shall fill any vacancy in an office of the
supreme court justice or superior court judge by
appointing one of two or more persons nominated by
the Judicial Council.
2. Statutory Judges: District, Appellate and
Magistrates. Existing statute currently follows the
Judicial Council nomination process. However,
judicial candidates are subject to the
legislature's discretion on how they are selected,
and appointed and whether they are confirmed by the
legislature. SB 31 exercises the legislature's
delegated constitutional authority to set policy on
how these statutory judges are selected to serve on
the bench. The operating authority of the provision
is: Art IV Sec 4. "Judges of other courts shall be
selected in a manner, for terms, and with
qualifications as prescribed by law."
Currently, magistrates serve at the pleasure of the
presiding superior court judge. Appellate and District
Court Judges are nominated in a statute defined
process that mirrors the Art IV Sec 5 Judicial Council
process.
The Council is structured to give a majority of the
Alaska Bar (Bar) members the control of who gets to be
a judge or justice. The deciding vote in a tie is
given to the ex-officio seventh member, the Chief
Justice. The Chief Justice has voted 79 times to break
ties since 1984.
Additionally, all judicial candidate names are subject
to a Bar member-controlled prescreening process. Bar
members of the Council are appointed internally by the
Bar with no legislative confirmation or administrative
oversight. Virtually all the Judiciary Branch is,
"beyond the reach of democratic controls." There is an
old saying, "power corrupts, and absolute power
corrupts absolutely." While the bill sponsor is not
expressly alleging corruption within the Judiciary, it
is undeniable that the Bar exercises tremendous power
over the judiciary.
In a legislative briefing to a joint session of the
legislature, Chief Justice Winfrey recently decried
the legislature meddling in the Judiciary, claiming
there are no politics in the Judiciary. If you
disagree, he further implied that you are just a sore
loser. He was adamant that the people's
representatives should not influence the selections of
judges.
4:34:58 PM
SENATOR CLAMAN called a point of order saying that the foregoing
was a poor characterization of the Chief Justices' comments, and
it was inappropriately disrespectful.
CHAIR SHOWER countered and then continued to read the sponsor
statement.
However, the constitutional framers that sought to
protect upper benches from political meddling, against
their own convention consultant's warnings, yet left
the lower benches up to legislative control. Up to
this point, the legislature ceded 100% control, and it
mirrors the "constitutional" Alaska Bar selection
controls.
The Alaska Constitutional Convention Judiciary
Committee Consultants wrote, as reported by Vic Fisher
in his book, "Alaska's Constitutional Convention." -
No state constitution has ever gone this far in
placing one of the three branches of the government
beyond the reach of democratic controls. We feel that
in its desire to preserve the integrity of the courts,
the convention has gone farther than is necessary or
safe (emphasis added) in putting them in the hands of
a private professional group, however, public-spirited
its members may be.
Senate Bill 31 strikes the "safe" constitutional
balance envisioned by the framers by giving the
governor and the people's representatives an
appropriate say in who sits on certain statutory
benches. It allows the governor to appoint and the
legislature to confirm who fills magistrate, district
court and appellate judges. It still allows the
Council to screen and recommend all candidates, but
the governor is not mandated to appoint only from the
Bar submitted list. The governor can nominate and
appoint Judicial Council screened magistrate,
district, and appellate judges. Even then, the final
"safety" cross check would be an up or down vote on
each appointment to the lower courts by the
legislature.
The sponsor respectfully suggests that lawyers may
have a conflict of interest when they rate judges for
retention. They all may appear before those judges and
are all sworn officers of the court. Imagine if only
legislators could nominate who could run for office!
Do they gain favor with judges they helped get on the
bench? Do they lose favor with those they rate poorly,
or vote against? The Constitution is clear, all power
is derived from the people, not the Bar or any other
private or trade organization. It is well past time
the "people's" branch, the legislature, take back its
constitutional derived authority in selection of lower
judicial appointments.
SB 31 exercises the authority expressly granted in the
constitution, for the legislature and governor to
prescribe how Magistrates, District Court judges and
Appellant Court judges are nominated and confirmed.
Thus, awakening the constitutional framers long
dormant approach to judicial selections.
4:37:30 PM
CHAIR KAWASAKI asked the sponsor to point out the differences
between this bill and the forthcoming CS.
CHAIR SHOWER said the bottom line is that magistrates will be
removed from the bill, except for the accountability section.
4:38:43 PM
SENATOR CLAMAN noted the reference to 79 times that the Chief
Justice voted to break a tie when the council was considering
whether or not to advance a name to the governor for nomination
to a judgeship. He asked how many times names were advanced and
the Chief Justice did not participate.
CHAIR SHOWER said he didn't know.
SENATOR CLAMAN asked if it was hundreds or thousands.
CHAIR SHOWER guessed that at best it would be a few hundred in
the history of the state.
4:40:07 PM
SENATOR CLAMAN asked if he was saying that the council voted to
advance a name to the governor just a few hundred times without
the Chief Justice having to cast a vote to break the tie.
CHAIR SHOWER said he thought that was correct. He acknowledged
that he didn't spend time researching that aspect of the
question.
SENATOR CLAMAN asked how often in those 79 times did the Chief
Justice vote in favor of advancing the name and how many time
did the Chief Justice vote to not advance the name.
CHAIR SHOWER replied he didn't ask for that data; he only wanted
to show that it does happen. He didn't want it to become a
political issue.
4:44:56 PM
SENATOR CLAMAN said his quick review of the material in the bill
packet indicated that a substantial majority of the time the
Chief Justice voted to advance the name to the governor for
consideration. He disputed the notion that it was a political
process, and expressed interest in the sponsor's office doing an
accounting so the committee knows how often the Chief Justice
voted against advancing a name.
CHAIR SHOWER said he'd try to get the data. He directed
attention to a document in the bill packets that describes how
Alaska judges currently are selected, with the exception of
magistrates. SB 31 suggests using the same attorney pool, the
Judicial Council still vets and screens the candidates, and the
governor would make the selection. If the governor rejects a
selection, it triggers a second round. In the second round the
governor would choose two names and the judicial council would
choose up to four more names, the governor would choose from
those names, and the legislature would vote to confirm the
judges. This would apply to district and appellate courts; this
would apply to 24 judges.
SENATOR CLAMAN asked if he agreed that all judges currently go
through the same process for appointment.
SENATOR SHOWER said yes.
SENATOR CLAMAN opined that if some judges were to go through a
processes that is not pursuant to the constitution, they would
be more likely to approach things with a different degree of
rigor or differently than judges who were appointed pursuant to
the constitutional process. This would invite more appellate
litigation and more disagreement amongst the district court and
the courts of appeals with the superior court and the Supreme
Court. He said it seems that the proposed process would not be
as good as the current process.
4:46:27 PM
CHAIR SHOWER maintained that he was suggesting what the
constitutional founders said to do. The judges will follow the
rules the Supreme Court sets. He didn't see an issue.
SENATOR CLAMAN asked if he could point to an example in which a
magistrate was found to owe a duty of loyalty to a superior
court judge.
SENATOR SHOWER said that's unprovable, but it's a reasonable
assumption.
4:48:45 PM
SENATOR CLAMAN asked if the Commission on Judicial Conduct looks
at the conduct of judges and magistrates and takes action only
if they are doing something inappropriate.
CHAIR SHOWER offered his understanding that the commission would
investigate a complaint that was filed.
CHAIR KAWASAKI advised that testimony could be submitted to
[email protected].
4:50:40 PM
CHAIR KAWASAKI opened public and invited testimony on SB 31.
4:50:48 PM
BETTY JO MOORE, representing self, Anchorage, Alaska, provided
invited testimony in support of SB 31. She stated that Alaska
needs judicial reform because not all judges follow the law,
which violates citizens' constitutional rights. She said the
selection of judges should never be controlled by a political
party or the Alaska Bar. Alaska needs judges who protect
Alaskans against injustices. She quoted a statement from a group
of justices who acknowledged that too often African Americans,
Alaska Natives, and other people of color are not treated with
dignity and respect and that as judicial officers they were
committed to do more to change this reality.
MS. MOORE stated that another group of people who aren't treated
with the respect they deserve are the people without the
education, financial means, or necessary political connections
to protect their constitutional rights to protect their children
from the states foster care system. She questioned whether the
people in jail for crimes they didn't commit actually received a
fair trial. She mentioned a survey mailed several weeks ago to
all Senators and Representatives asking about the Kenai Grand
Jury investigation and judicial corruption. Ms. Moore recounted
the letters she had written highlighting the wrongful and
inaccurate facts in an order that a superior court judge wrote,
the imbalance in the judicial system, and judicial violations of
constitutional rights. She charged that there was documented
proof of corruption among Alaskan judges and that they needed to
be impeached. She emphasized the need to stop judicial
corruption and that the remedy was for SB 31 to become law and a
constitutional convention to be called.
4:55:14 PM
SENATOR WIELECHOWSKI asked what percent of Alaskan judges she
believed were corrupt.
MS. MOORE answered that she wouldn't give a percentage until the
documentation is released, but one judicial injustice is one too
many.
SENATOR WIELECHOWSKI asked if she agreed that the process to
remove corrupt judges was through the retention vote.
MR. MOORE responded that the retention vote process doesn't
work.
4:57:42 PM
LOREN LEMAN, former lieutenant governor and former legislator,
Anchorage, Alaska, provided invited testimony in support of SB
31. He relayed a story from when he was a freshman legislator. A
member of the opposite party said Alaska might have a republican
governor someday but his party would always have the courts
because of the way judges are selected. Over the years that's
been his observation; over the last 35 years he's seen just one
strict constitutionalist on the Alaska Supreme Court. He opined
that every republican governor since statehood had complained
about the names the Judicial Council did not advance. He
provided examples. He described the current system as broken and
SB 31 as a creative solution.
5:02:16 PM
FRITZ PETTYJOHN, former legislator and member of the Alaska bar,
Anchorage, Alaska, provided invited testimony in support of SB
31. He mentioned a course he took during law school that
advocated for lawyers to advance social justice. He said he
didn't believe it then and he hadn't changed his mind. He
believes that somebody who wants to advance social justice
should run for the legislature, which he did. He opined that the
idea that part of the job of judges and justices is to advance
social justice is an anathema; their job is to interpret the law
as written. Their job is not to create the law. He said there's
a fight in this country over US Supreme Court justices; there
are conservatives who believe in judicial restraint and liberals
who believe in judicial activism. He maintained that the reason
Alaska doesn't have that conflict is because the Alaska Bar
Association is overwhelmingly weighted with individuals who
believe that judges and the court system should advance social
justice. He called that backward and opined that SB 31 was a
small step in the right direction.
SENATOR SHOWER thanked the committee for staying late to hear
the testimony.
5:06:06 PM
CHAIR KAWASAKI held SB 31 in committee with public testimony
open.
5:06:42 PM
There being no further business to come before the committee,
Chair Kawasaki adjourned the Senate State Affairs Standing
Committee meeting at 5:06 p.m.