HOUSE JOINT RESOLUTION NO. 47 Proposing amendments to the Constitution of the State of Alaska relating to the nomination, selection, appointment, and public approval or rejection of justices of the supreme court and of judges of courts established by the legislature that have as an exclusive purpose the exercise of appellate jurisdiction over judicial acts and proceedings, and requiring legislative confirmation of those justices and judges and of the appointed members of the judicial council. REPRESENTATIVE JOHN COWDERY provided testimony in support of HJR 47. He stated that the resolution would provide for the legislative confirmation of judges appointed to Alaska's Supreme Court and the Court of Appeals. It would also provide for legislative confirmation of all members of the Judicial Council. HJR 47 was crafted to apply to appointments to both the Supreme Court and the Court of Appeals. It does so by adding constitutional language referencing courts or record with appellate jurisdiction that is established by the legislature, and would require all such appointments to be presented for legislative confirmation. Representative Cowdery continued, an additional feature of the resolution is that it would require confirmation of all members of the Judicial Council. The Council is created in the Constitution, Article 4, Section 8. It provides that three public members appointed by the governor shall be confirmed by the legislature. However, it also provides that three attorney members appointed by the Alaska Bar Association do not have to be confirmed. HJR 47 would require that all members of the Council would be confirmed by the Legislature. Representative Cowdery stated that the motivation for the constitutional amendment is to include the public in the process of appointing judges. The public currently has less input into the judicial branch of government than in either the executive or legislative branches. By providing for the legislative confirmation of judges, the public will be able to participate in confirmation hearings. Judicial candidates will be able to present their philosophical approach to jurisprudence. The public will have a voice in that selection. In response to Representative Kelly, Representative Cowdery explained that the Judicial Council was comprised of nine members. Three from the public appointed by the Governor, three public members and three from the Alaska Bar Association which are not confirmed. The Chief Justice is the head of the group. THOMAS STEWART, RETIRED JUDICIAL JUDGE, ALASKA SUPERIOR COURT, JUNEAU, noted that he had been involved in the Alaska Court System since its inception in 1959 and the preparation of the Alaska Constitutional Convention. Judge Steward spoke to three general categories: ? History of the merit system for selecting judges; ? Concerns of the operations of the proposed measure; and ? Manner in which constitutional amendments are generally handled by the Legislature. Judge Stewart strongly opposed the proposed legislation and urged Committee members to veto its passage. Representative Martin suggested that the current system is "broken" because an element of trust has been diminished within our State. He noted that the current Judicial Council has initiated liberal candidates and that the public has no awareness of the judges who are chosen. Judge Stewart pointed out that every judge stands for election in his or her district, the first being in a general election after three years in office. He emphasized that there have been judges rejected and that the public does have the opportunity to support or reject candidates. Judge Stewart advised that the current process does allow for correction of mistakes. Judges are responsible for executing laws as passed by the Governor and Legislature. Representative Martin voiced his frustration with the Court's position on the "right to privacy". (Tape Change HFC 98- 137, Side 1). Representative Grussendorf voiced concern with partisan politics becoming involved in the judicial system with passage of the resolution. Co-Chair Therriault asked if Representative Grussendorf would support Section 2 of the Legislation. Representative Kelly observed that there is currently a "disconnection" between the judiciary and the people. He questioned who the judicial branch is accountable too. Representative Kelly stressed that the proposed legislation represents the public's frustration. He stated that the judiciary branch is "out of touch" and has become an over active judiciary. Representative J. Davies disagreed with the characterization presented by Representative Kelly. He noted that more of his constituents have complained with how "out of touch" the Legislature had become. He claimed that Representative Kelly's statements were a vast over reaction. He elaborated that the judiciary is doing its job with laws as legislated. Representative Kelly responded that logic disseminated by the courts, often times is not sound. He believes that the Judicial System currently is in the business of making law and that many judges ignore legislative intent. He suggested that the "right to privacy" now has evolved by the judiciary to confer a benefit for people. He understood the "right to privacy" as the right to be left alone. Representative Kelly reiterated that the public is "tired" with backward decisions made by the judiciary. Representative Grussendorf stated that a protection of the Court System is that judges are not a part of a popularity contest as politicians are. It would be harmful to have judges in such a situation. The role of legislators is to be reflective of the public opinions but that is not the role of judges. Representative Mulder asked how often do judges stand for retention. Judge Stewart replied that on the appellate level, Supreme Court justices stand for retention at the first election after ten years served, although, they stand for reconsideration after the first general election after three years in office. All judges selected under the merit system stand for retention and that there is a performance record for the voters to look at. For the Supreme Court judge, it is ten years, for the trial court judge it is six years, and for the district court judge, it is four years. Judge Stewart advised that in the federal system, judges are appointed for a lifetime. KEN JACOBUS, (TESTIFIED VIA TELECONFERENCE), ANCHORAGE, stated that politics are most definitely involved in the present judicial system. These politics are being played under the table. He advised that what currently exists is different from the judicial system that Judge Stewart participated in. Currently, there is a serious developing crisis of confidence within the judiciary. There is a split between the judiciary and the people. He pointed out that at the Republican Convention in Fairbanks, a resolution was amended to request people to vote "no" on all judges at confirmation elections who make decisions which are contrary to the Republican Party platform and that resolution was passed. Mr. Jacobus supported the Legislature placing constitutional amendments before the people for matters, which they believe are inappropriate decisions of the judicial system. He urged support for the proposed legislation allowing the public to decide, declaring that this would provide more and better judges for the Alaska system. WILLIAM COTTON, EXECUTIVE DIRECTION, ALASKA JUDICIAL COUNCIL, JUNEAU, spoke in opposition to the legislation. He stated that the Council is a small, independent agency, which was created by the Constitution in the Judicial Branch of Government and is separate from the Court System. The Council has constitutional and statutory duties in different areas such as the screening of applicants and the evaluation of justices on the ballot. Mr. Cotton emphasized that Alaska provides a more thorough evaluation of judges than any other state in the world. Alaska provides more information to the voters than anywhere else in the world. Before a judge appears on the ballot, the Judicial Council will thoroughly survey anyone who have served with that person on a personal or business relationship, checking all the feedback and credit information. Additionally, there is a statewide public hearing, teleconferenced, for public input. The majority of that information is available to the public. Mr. Cotton emphasized that the current process does not pit the attorney members of the Council against the non- attorney members. In the screening process, the Council provides a thorough background check, providing the public with honest information regarding the candidates. Mr. Cotton warned that the background of a person does not necessarily determine what kind of judge they will become. The current system is very good and balances the need for judicial fairness and public accountability. Mr. Cotton stressed that Alaska's system is recognized and respected nationally. Mr. Cotton urged Committee members to reconsider passage of the resolution. Co-Chair Therriault inquired the percentage of appointments which come from within and outside the judiciary. Mr. Cotton replied that he did not have any statistics available, although, guessed that between 10 - 20% court judges move to the Superior Court. (Tape Change HFC 98- 137, Side 2). STEPHANIE COLE, ADMINISTRATIVE DIRECTOR, ALASKA COURT SYSTEM, ANCHORAGE, addressed the concerns within the Court System with the proposed legislation. 1. Erosion of judicial independence and politicization of the process. She stated that the fundamental principle in our system of government is that judges are impartial. Ms. Cole pointed out that each person who brings a case before an Alaska Court should feel that the judge hearing the case is unbiased, fair and that the judge will apply the law to the particular facts of that case. Ms. Cole warned that with a legislative confirmation process, there is a real danger that judges will be perceived as favoring the party or groups which championed them through the process, a danger in which judges will be perceived as having a prejudged issue based upon the questioning occurring during the confirmation process which would especially be a problem in highly controversial cases. Ms. Cole pointed out that in the federal system, which is not a merit-based system, there have been confirmation hearings which have appeared to become very political. The Court System believes that our current system is preferable. 2. HJR 47 creates the potential for significant additional delay in judicial appointments, which may have an undesired effect on the applicant pool and would create serious workload issues for the Court. Ms. Cole pointed out that at this time it takes on the average six months for all steps in judicial selection to be completed. Judicial absences equate to a loss of judicial resources, which then equates to case delay. Court operations are seriously impacted by gaps especially on the appellate level. 3. HJR 47 would downgrade the merit selection process results. She referenced previous testimony from Mr. Cotton explaining that the trend is to move towards a merit selection for judges, not away from it. In the Alaska system, there is a very rigorous scrutiny of applicants in which only the most qualified emerge from the process and are sent to the Governor for selection. The proposed system could result in working down the list to lesser-qualified candidates. Ms. Cole reiterated that the Alaska Court System strongly opposes the proposed legislation. Co-Chair Therriault asked how many people on the average submit their name for consideration in the process. Ms. Cole replied there is a large variation depending on the length of time since the last selection, the level of court and the location. VICTOR FISHER, SELF, FORMER MEMBER OF THE ALASKA CONSTITUTIONAL CONVENTION, ANCHORAGE, spoke in opposition to the legislation. He stated that the resolution would not bring public involvement into the process, but would instead politicize the judicial appointment process. The Constitutional Convention worked vigorously at establishing a fair balance between the branches of State government. Mr. Fisher pointed out that HJR 47 is poorly drafted and that the language is out of context with the rest of the Constitution. He recommended that the proposal should be laid aside. Co-Chair Therriault asked if Mr. Fisher was speaking to only the confirmation of the judges. Mr. Fisher replied that he was speaking to the confirmation aspects, indicating that the Judicial Council portion of the legislation was the only part properly drafted. Mr. Fisher concluded that our system is not broken. LISA KIRSCH, APPOINTEE BY THE GOVERNORS BOARD, ALASKA BAR ASSOCIATION, JUNEAU, stated that the Alaska Bar Association is a mandatory association with 2200 members that are active attorneys. A 12-member board, three of which are lay members, governs the bar. The Alaska Bar Association has been vested with the constitutional responsibility to appoint three of the seven members of the Council. The Council is then responsible for evaluating candidates for judicial appointment. The Alaska Bar Association is concerned with a number of different aspects contained in HJR 47. 1. The addition of the confirmation process in the Legislature will politicize the process. The primary issue is that the partisan political process is inappropriate in making the determinations required by a court of law. The seats are not contested along the lines of partisan politics. The concern is that the legislation will turn the contest focus from performance attributes of the candidates to the ability of the candidate to lobby for support. 2. The Alaska Bar Association's concern is also for the proposed process for appellate judicial appointments. There is concern that this will result in a smaller pool of applicants and applicants drawn only from those willing or able to weather out a long and continuos process. Ms. Kirsch advised that our current non-partisan system is what makes this judicial system such a good one. The polling process is a complicated system and is much more thorough than the public checking a yes or no box in support or opposition of candidates. In summation, Ms. Kirsch advised that the Alaska Bar Association can not comprehend any difficulties that will be resolved with passage of the legislation. She suggested that if it isn't broken, don't fix it. Ms. Kirsch pointed out that the judiciary's current non-partisan selection process is responsible for Alaska's high quality judiciary which should be retained. Co-Chair Therriault asked if the Council had experienced any difficulties with appointments which have been confirmed. Ms. Kirsch suggested that often the attorneys who seek out the positions are the ones who have had major cases, are already in the public eye, and have been subject to scrutiny. For specifics, she referred to Mr. Cotton. Co-Chair Therriault asked Representative Cowdery how the cases in which the Legislature choose not to confirm a name submitted to the Governor would be addressed. Representative Cowdery replied that if the proposed legislation was in place, the concern would be alleviated. MARCO PIGNALBERI, STAFF, REPRESENTATIVE JOHN COWDERY, stated that during Governor Hickel's Administration, he choose not to forward the names to the Legislature, and consequently, the Council provided additional names. Mr. Pignalberi stated that it is the governor's job to make the names available to the Legislature. He stressed that this legislation would require everyone to do their job. Co-Chair Therriault questioned the timing concern with filling vacated positions. Mr. Pignalberi advised that the court administrator has the ability to require judges to receive a year notice before retirement. He pointed out that the legislation only speaks to eight judicial positions. Representative J. Davies advised that those are the most preeminent positions in the entire Court System. If those positions became politicized, it would largely impact the entire system. Representative Cowdery replied that the current system is already politicized. Representative Grussendorf warned of the dangers that will result from the proposed legislation. Representative Kohring concurred with previous remarks made by Representative Kelly and voiced support for the proposed legislation. He pointed out his frustration that the judicial process has been ignoring the laws which the Legislature has been making. Representative J. Davies asked what benefit Representative Cowdery believed would occur by placing judges through these tests. Representative Cowdery replied that it is the right of the public to know the belief system and politics of the court judges. Representative J. Davies asked if it was important that judges apply their own views on decisions that they make in the Court of Law. Representative Cowdery replied that it is important for the voters to know who these people are. Representative J. Davies emphasized that what is really important is that a judge be able to set aside their own view and make decisions fairly within the limits of the law. Representative Cowdery stated that elected officials are elected for their viewpoints. Representative J. Davies reiterated that the standard is that the judge's view should not be important. Representative Kelly noted that it has become important because the judiciary has changed. They are no longer interpreters of the law, but instead, they are in many cases, makers of the law. (Tape Change HFC 98- 138, Side 1). Representative Grussendorf MOVED to adopt Amendment #1. [Copy on File]. He explained that the amendment would specify that only the members of the Judicial Council come before legislative scrutiny. Representative Kohring OBJECTED. Following discussion of the impact of the amendment, a roll call vote was taken on the motion. IN FAVOR: Grussendorf, Kelly, Martin, Moses, J. Davies, Therriualt, Hanley OPPOSED: Kohring, Mulder, G. Davis Representative Foster was not present for the vote. The MOTION PASSED (7-3). Representative Mulder MOVED to report CS HJR 47 (FIN) out of Committee with individual recommendations and with the accompanying fiscal note. There being NO OBJECTION, it was so ordered. CS HJR 47 (FIN) was reported out of Committee with "no recommendation" and with a fiscal note by the Office of the Lt. Governor dated 3/11/98.