HB 82-SELECTION AND REVIEW OF JUDGES  1:49:22 PM CHAIR VANCE announced that the final order of business would be HOUSE BILL NO. 82, "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." 1:49:38 PM REPRESENTATIVE GEORGE RAUSCHER, Alaska State Legislature, prime sponsor, presented HB 82. He provided the sponsor statement [included in the committee packet], which read as follows [original punctuation provided]: House Bill 82 would bring the Judicial system by to what was envisioned by the framers of the Alaska Constitution. First it should be noted that there are two types of judges. 1. Constitutional Judges: Superior Court Judges and Supreme Court Justices, which 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. HB 82 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 nominate by the Judicial Council. 2. Statutory Judges: District, Appellate and Magistrates. The last of the 3 is not in this legislation. Existing statute currently follows the Judicial Council nomination process. However, judicial candidates are subject to the legislature's discretion on how they are selected, appointed and whether they are confirmed by the legislature. HB 82 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, 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, 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 democratic control of a more non-bias process." The constitutional framers that sought to protect upper benches from becoming bias when choosing their own installed safeguards, which left the lower benches up to legislative control. Interesting enough, till now 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. House bill 82 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 the certain statutory benches. It allows the governor to appoint and the legislature to confirm who fills district court and appellate judges. It still allows the Council to screen and recommend all candidates, but the governor is not mandated to appoint from only the Bar submitted list. The Governor can nominate and appoint his own Judicial Council screened magistrate, district, and appellate judges. HB 82 exercises the authority expressly granted in the constitution, for the legislature and governor to prescribe how District Court judges and Appellant Court judges are nominated. 1:52:45 PM REPRESENTATIVE ALLARD moved to adopt the proposed committee substitute (CS) for HB 82, Version 32-LS0483\B, Gunther/Radford, 3/4/23, as the work draft. There being no objection, Version B was before the committee. 1:56:49 PM The committee took an at-ease from 1:56 p.m. to 2:00 p.m. 2:00:22 PM REPRESENTATIVE RAUSCHER deferred to his staffer, Mr. McKee, to provide a summary of changes in Version B. 2:00:43 PM RYAN MCKEE, Staff, Representative George Rauscher, Alaska State Legislature, on behalf of Representative Rauscher, prime sponsor, provided a summary of changes in the proposed CS to HB 82, Version B, which read as follows [original punctuation provided]: 1. Title change; Adds: "Selection of magistrates" to tile. Adds: Relating to the conduct of magistrates; and relating to the impeachment, disqualification, suspension, removal, retirement, and censure of magistrates, to the title. 2. Body of Bill; Removes magistrates from the approval and rejection process on the ballot that all other judges are subject to. Sec 1, Sec 2, Sec3, Sec 4, Sec 5, Sec 6, Sec 7, Sec 8, Sec 9, are all eliminated. Adds magistrates to the legislative confirmation process. Streamlines the recommendation process for the Judicial Council; • Version\A had a two tier system of nominations, the Judicial Council nominated, and if the governor did not like nominations, he then could nominate his own. • Version\B both the Governor and Judicial Council simultaneously nominate on the same time frame. Eliminates magistrates from the judicial report associated with removal and retention process. Retains magistrates in the Commission on Judicial Conduct and impeachment process. 2:02:17 PM REPRESENTATIVE EASTMAN asked why the changes in Version B were being proposed. REPRESENTATIVE RAUSCHER stated that the purpose was to add "magistrate" (indisc.), which was omitted from the original version of the bill. REPRESENTATIVE EASTMAN attempted to clarify whether magistrates were being removed from or added to the retention removal process. 2:03:48 PM REPRESENTATIVE RAUSCHER clarified that Version B would eliminate magistrates from the judicial report associated with the removal and retention process; however, the proposed CS retained magistrates in the Commission on Judicial Conduct and impeachment process. CHAIR VANCE welcomed invited testimony from former lieutenant governor Loren Leman. 2:04:49 PM LOREN LEMAN, former lieutenant governor, stated his support for HB 82. He shared a personal anecdote recounting his experience as a freshman in the Sixteenth Alaska State Legislature. He opined that the process for selecting judges was a detriment to public policy in Alaska. He recalled that the consultants to the Alaska Constitutional Convention [1955-1956] had advised against placing power in the hands of a private professional organization. He remarked that that with the exception of Justice Craig Stowers, strict constructionists had been denied appointment to the Alaska Supreme Court. He suggested that every governor since statehood had complained about the limited choices presented to them. He argued that although HB 82 would not immediately solve the imbalance of judicial temperament on the Alaska Supreme Court, it would be a step in the right direction. He opined that the bill demonstrated a process with better balance that would work well for district and appellate courts. He urged the committee to consider the legislation, advance it, and support the bill on the House floor. He characterized HB 82 as a novel approach that would move the judiciary closer to the concept of "We the people." 2:11:19 PM REPRESENTATIVE GRAY asked whether the purpose of the bill was to get judges with a more political agenda on the bench. MR. LEMAN asked Representative Gray to clarify the question. REPRESENTATIVE GRAY remarked, "Do you want people to think like Republicans to give more of a partisan view of the law?" MR. LEMAN shared his understanding that the intent was to implement a fair and balanced system for nominating and selecting judges. He argued that the existing system, which he termed a "merit plan," wasn't working. He added that under the current system, strict constructionists "need not apply." REPRESENTATIVE GRAY sought to verify that Mr. Leman had stated that the intent was to [select] judges that had no political agenda and applied the law fairly. He asked whether that was a fair summation. MR. LEMAN confirmed that the goal was to select judges who applied the law fairly. 2:14:33 PM REPRESENTATIVE EASTMAN asked how the jurisprudence of the justices on the Alaska Supreme Court compared to other states or the U.S. Supreme Court in terms of diversity. MR. LEMAN opined that the Alaska Supreme Court was less diverse. He shared his belief that the bench was lacking strict constructionists. 2:15:59 PM REPRESENTATIVE ALLARD suggested that the voice of the people was not being heard by the current judicial selection process because elected officials "had no say." She asked whether Mr. Leman agreed with that statement. MR. LEMAN opined that the Alaska Judicial Council was effectually making selections for the governor by putting forth two names, one of which the governor would never pick. He said he would support a provision requiring [the governor's] selection to be subject to confirmation by the Senate. REPRESENTATIVE ALLARD asked whether the judicial system in Alaska was imbalanced. MR. LEMAN answered yes, adding that the court was "5-0." He opined that Alaska would be better served with a more balanced court. 2:20:27 PM REPRESENTATIVE GRAY inquired about the meaning of the expression "5-0 court." MR. LEMAN shared his belief that all five judges shared a comparable judicial philosophy that was not based on a strict reading of the Constitution of the State of Alaska. REPRESENTATIVE GRAY asked Mr. Leman to expound on the uniting philosophy of the Alaska Supreme Court and to provide an example. MR. LEMAN discussed the parental right to privacy, citing Article 1, Section 22 [Right of Privacy] of the state constitution. 2:23:40 PM REPRESENTATIVE GROH sought to confirm that three of the seven members of the Alaska Judicial Council were appointed by the governor, as provided by the constitution. MR. LEMAN responded yes, adding that those members were also confirmed by the legislature. REPRESENTATIVE GROH asked Mr. Leman to define the term "strict constructionist." CHAIR VANCE asked whether this line of questioning was germane to the bill. REPRESENTATIVE GROH understood that Mr. Leman would like Alaska's judicial system to select more strict constructionists, which was the basis for his support for the legislation. He sought to understand the meaning of the term. 2:25:07 PM MR. LEMAN defined "strict constructionist" as someone who applied the constitution at face value. REPRESENTATIVE GROH asked for examples of cases that would have been decided differently had Mr. Leman's preferred system for judicial selection been in effect. MR. LEMAN remarked, "I haven't made that list, but I can tell you that that particular initiative passed by the people of Alaska by a large margin would have been one of them on that list." REPRESENTATIVE GROH pointed out that initiatives were not cases. MR. LEMAN indicated that the initiative turned into a case. 2:26:58 PM REPRESENTATIVE EASTMAN asked whether creating a law school in Alaska or changing the score required to pass the Alaska Bar Exam would solve Mr. Leman's concern. MR. LEMAN said offering more options would be a good idea; however, he argued that it would not resolve the basic unfairness in the system, as the system for judicial nomination and selection was flawed. 2:30:21 PM FRITZ PETTYJOHN, former legislator, noted that he had been a member of the Alaska Bar Association (ABA) for 40 years. He stated that he rejected the philosophy that lawyers should be agents of social change through the court system. He opined that an overwhelming majority of ABA members favored judicial activism, as opposed to judicial restraint. He argued that there was no balance or diversity in the Alaska judicial system resulting in a court system that injected itself into public policy. He believed that the judicial system should be confined to interpreting the law. He defined the bill as a small step in the right direction. He expressed his hope that in the future, the state constitution would be amended to allow the legislature and the governor some control over the selection of judges. He encouraged the committee to pass the bill. CHAIR VANCE inquired about the dangers of uniformity. MR. PETTYJOHN stated that judicial conservatives like himself were not represented on the Alaska Supreme Court. He emphasized the need for diverse philosophies, adding that ideological conformity was being enforced by the ABA. He characterized the ABA as a group of self-interested lawyers who get to control who becomes a judge. 2:38:47 PM REPRESENTATIVE GRAY asked how changing Alaska's judicial system to conform with the Lower-48 or the Federal Judiciary would bar judges [with a certain philosophy], like Ruth Bader Ginsburg or Clarence Thomas. MR. PETTYJOHN said he did not understand the question. REPRESENTATIVE GRAY asked how HB 82 would make the system less partisan. MR. PETTYJOHN said he would like to see more judges like Clarence Thomas on the Alaska Supreme Court. Conversely, he proclaimed that Ruth Bader Ginsburg believed in advancing her conception of social justice through the court system, which he disagreed with; consequently, he said, he would oppose judges who shared the same political philosophy as Ms. Ginsburg. REPRESENTATIVE GRAY asked how the Alaska Supreme Court lacked diversity. MR. PETTYJOHN said, "Just read their opinions." He asserted that the record of the Alaska Supreme Court over the past 40 years showed a history of expanding their own power and restricting the power of the legislature, the governor and thereby, the people of Alaska. REPRESENTATIVE GRAY asked whether past decisions would have been different if more judges like Clarence Thomas had sat on the bench. MR. PETTYJOHN exclaimed, "Of course there would be." 2:42:37 PM REPRESENTATIVE ALLARD remarked, "Are you stating that because there are more Judge Ginsburg are you telling us that the court system leans more towards that because you believe that's who sits on the court system now?" MR. PETTYJOHN answered, "That is the way the court system is now. That's because the way the Alaska Bar Association has determined the court system will be through its power over the judicial selection." 2:44:26 PM REPRESENTATIVE ALLARD asked whether there were instances in which the court had interpreted state law in contradiction to the legislative intent. MR. PETTYJOHN asserted that [the Alaska Supreme Court] primarily "perverted" the constitution to expand their own power. He shared an example of judicial activism. 2:46:00 PM REPRESENTATIVE GROH asked whether Mr. Pettyjohn had ever taken a poll of practicing lawyers across the state to determine the diversity of their attitudes. MR. PETTYJOHN recounted a personal anecdote regarding the Anchorage Bar Association and the legalization of marijuana. He explained that after practicing law in Alaska for 41 years, he found the ABA to be overwhelmingly liberal, left wing, democrat, and [full of] judicial activists. CHAIR VANCE asked the bill sponsor whether the purpose of the bill was to allow the legislature to have a voice in the appointment of judges and judicial officers. 2:48:56 PM REPRESENTATIVE RAUSCHER likened the judicial selection process to legislators picking the next legislators. He added that the goal was to implement a comprehensive system with checks and balances. He emphasized that the goal was not implement a more progressive or conservative ideology, reiterating that a balanced system was the goal. CHAIR VANCE announced that HB 82 was held over.