SENATE JOINT RESOLUTION NO. 21 Proposing amendments to the Constitution of the State of Alaska to increase the number of members on the Alaska Judicial Council and relating to the initial terms of new members appointed to the Alaska Judicial Council. 5:06:39 PM HEATHER SHADDUCK, STAFF, SENATOR PETE KELLY, introduced the bill. She explained that the bill placed the constitutional amendment to the state voters if passed. She stated the goal of adding more public members to the Alaska Judicial Council. She pointed out that the Alaska Constitution stated that three attorney members would be appointed by the bar association to the Alaska Judicial Council along with three non-attorney members. The members were appointed by the governor and confirmed by the legislature. She mentioned article 4, section 8 which stated that members "shall be appointed for 6 year terms by the governor subject to confirmation and vacancies shall be filled for the unexpired term in a like manner and appointments shall be made with due consideration to area representation and without regard to a political affiliation." Ms. Shadduck informed the committee that Senator Kelly wished to see more public members on the Alaska Judicial Council because the goal of area representation had not yet been reached. The historical makeup of the Alaska Judicial Council included attorneys from four locations: 14 from Fairbanks, 12 from Anchorage, 10 from Juneau and 3 from Ketchikan. The public members originated from the same four cities. Senator Kelly hoped to reach regional diversity across the state. Additionally, current practice allowed a tie to be broken by the Alaska Supreme Court justice. She noted that Senator Kelly viewed the practice as a conflict of interest. She pointed out the last two years from June 22, 2012 through October 10, 2013, when the last five attorney/non-attorney vote splits occurred. All three public members voted to send a name on to the governor, but the Chief Justice sided with the attorney members to avoid sending the name. Two of the votes were for the Supreme Court. 5:10:09 PM Ms. Shadduck explained that the CS allowed three additional public members to serve on the Alaska Judicial Council as a compromise adopted by the Senate Judiciary Committee. She stated that the odd number of members would help to prevent soliciting an opinion from the Chief Justice in the event of a tie. Co-Chair Meyer opined that he was sensitive to the notion of conflict of interest as presented in Ms. Shadduck's testimony. He disagreed that the Chief Justice had a conflict of interest. He agreed with the need for additional public input in the process. He wondered about utilizing 4 public members and 3 attorney members to limit the amount of members and save the state money for travel expenses. Ms. Shadduck replied that the constitution demanded area representation for the appointments. With only three public members, proper representation of Alaska's regions was impossible. Senator Hoffman opined that more members would be optimal. Co-Chair Meyer asked about more members from Bethel. Senator Hoffman replied that Bethel had not yet contributed a member to the Alaska Judicial Council. Ms. Shadduck agreed and commented that the idea of representation by judicial district had been explored, since Fairbanks was in the fourth judicial district with Bethel. 5:12:39 PM Co-Chair Meyer asked how often the Chief Justice had to vote. Ms. Shadduck replied that the Chief Justice voted 68 times; 15 times when attorneys and non-attorneys split their vote. Vice-Chair Fairclough believed that an increased frequency in participation of the Chief Justice was noted in the recent past; leading to the interpretation of a problem of frequency. Ms. Shadduck concurred. She noted that the last five attorney and non-attorney splits resulted in a vote for an attorney by the Chief Justice. 5:13:44 PM Senator Dunleavy asked about the fiscal note. Ms. Shadduck replied that the updated fiscal note reflected a cost of approximately $1500 or $12 thousand. The estimates were reduced from the original request of $32 thousand. Co-Chair Meyer pointed out the updated fiscal note. He stated that the expansion would increase the travel costs. He OPENED public testimony. He stressed that a constitutional amendment weighed heavily in importance. 5:15:29 PM NANCY MEADE, GENERAL COUNCIL, ALASKA COURT SYSTEM, stated that the Alaska Court System rarely defined a position on proposed legislation. A bill would be opposed only if it impacted a core aspect of the judicial branch. The Court System opposed SJR 21 for that reason. The court only opposed a bill at the express direction of the Supreme Court. She pointed out that the judicial branch was comprised of three entities: the court system, the Alaska Judicial Council and the Commission on Judicial Conduct. She stated that the court system was used interchangeably with the judicial branch because the other two entities were relatively small. The court system was separate from the council, yet depended on the work of the council in screening applicants for judicial positions and making recommendations in judicial retention. The court system required qualified judges for the maintenance of the public's trust and confidence. She testified against the resolution because the court system relied on the council's work. 5:17:44 PM Ms. Meade noted that the resolution had the potential to change the judicial screening process significantly despite its 50 years of proven effectiveness. The current council would select the most qualified applicants based on their merit. Merit selection of judges was considered the gold standard across the country. The judges were chosen as the best professionals in their field. Ms. Meade addressed points made by Senator Kelly's staff. The council's diversity issue was supported by the court system. If a proposal demanded or required additional area representation or diversity among council members, the court system would not oppose the change. The court system attempted to attract diverse applicants to the bench with methods such as outreach and education. Ms. Meade stated her problem with the proposed balance of the council. The court system believed that the current makeup of the council chosen by the constitutional founders with three attorneys and three public members worked well by allowing for the balance of differing views. The balance assured that no one group had a greater voice. The attorneys likely had a greater understanding of the skills required to be a judge. The lay members had valuable views related to communication and character of applicants. She stated that both types of opinions were valuable during a screening process. She stressed that the balance between attorney and non-attorney members was crucial. A consensus would be better obtained with a balance. 5:20:50 PM Ms. Meade believed that the bill could lead to selection on basis other than pure merit. She stated that the Alaska Court System opined that the bench was strong with lawyers that were the best in their field. She argued that the balance forced the council to act on a consensus basis and listen to the views of the other group. The bench was viewed as strong with lawyers that were deemed the best in their field. 5:24:03 PM Ms. Meade offered to answer questions. She mentioned over 1100 votes with splits 68 times. Only 15 of the splits were divided evenly among attorney and non-attorney members. She agreed that 5 out of 200 votes occurred in a row over the last several years where the attorneys and public members were split and the Chief Justice voted with the attorneys. She stated that the numbers in comparison were very small. Out of the four votes, two were for the same applicant who applied twice. She argued that the votes could not be considered a trend or sign of council dysfunction. She noted that unanimous voting occurred 80 percent of the time. Co-Chair Meyer understood the concern that the public members may not have to listen to the attorneys. He stated that the Chief Justice was also an attorney. Ms. Meade replied that while differing views existed, the vast majority of the times, votes were unanimous. She believed that the data proved that public member's voices were indeed heard. 5:25:51 PM Vice-Chair Fairclough asked if the Supreme Court requested that the Alaska Court System oppose the bill. Ms. Meade replied yes. Vice-chair Fairclough asked if the Supreme Court decision was divided or unanimous. Ms. Meade replied unanimous. Senator Hoffman asked about the potential for a system in which neither party was disenfranchised. He wondered about the process of the Chief Justice making the final selection in the event of a tie. He stated that without that practice, the lay members and attorneys would have equal opportunity for candidate selection. Ms. Meade agreed with the Senator. She stated that the balance could be maintained with the Senator's suggestion. 5:27:37 PM SUSANNE DIPIETRO, EXECUTIVE DIRECTOR, ALASKA ALASKA JUDICIAL COUNCIL testified about the council's merit selection and retention system. The council served two functions. The council members screened applicants for judicial nominations and sent them on to the governor for his appointment. The council also evaluated sitting judges and provided information to the voters about the judge's performance for retention evaluations. The founders created the methods of selection and retention of judges. Two methods of selection were established: election and gubernatorial appointment. The merit selection procedure allowed involvement from all branches; the Alaska Judicial Council screened on merit and sent names on to the governor who then appointed the selected candidate. The election occurred later when the judge stood for retention. The concern about public involvement was addressed in light of the fact that the voters were directly involved in the retention of the judges. Ms. DiPietro mentioned public involvement as related to diversity on the Alaska Judicial Council. The Alaska Judicial Council was among 38 states employing the same type of merit selection for judges. She mentioned the practices of press releases and comment solicitation from members of the public. The council published the names of applicants, which was not done by the majority of selection committees. When bar survey evaluations arrived, the council made them public. Many of the practices were unique to the Alaskan selection agency. Alaska Judicial Council members traveled to the vacancies when the time came to interview applicants. She stated that multiple interviews occurred in Bethel in tandem with a public hearing prior to the vote or interview. The purpose was to solicit information directly from townspeople to gather data regarding community preferences. 5:31:59 PM Ms. DiPietro discussed the deliberation process with the council. She noted that the process was not public, but the vote was. The interviews could occur in public if the applicants wished. She mentioned the upcoming Anchorage Superior Court vacancy where three of the six applicants wished to have public interviews. She conveyed the collegial nature of the interview and deliberation processes; each council member was called upon to ask the questions of the candidate and provide reviews of the merits of each candidate. 5:34:57 PM Ms. DiPietro discussed the chart: "Alaska Judiciary Council, Judicial Nomination over time" (copy on file). She emphasized that the council members had a high rate of agreement with applicant selection. She noted that 62 percent of votes were unanimous. Another 19 percent of the time, only one person had a different vote from the majority. She explained that attorney/non-attorney vote splits leading to a vote from the Chief Justice were rare with 68 votes out of 1100, which she deemed as a very high rate of agreement. She added that the Chief Justice traditionally voted to send additional names to the governor (73 percent of the time). Ms. DiPietro pointed out that the council often presented more than the minimum of two names for the governor (62 percent). She mentioned that the selections in Bethel were often for minimal applicants; oftentimes only two. She highlighted the importance of the data in the chart. The trends were made obvious. Less than 6 percent of the total votes were shown to be attorney/non-attorney splits over the last two years. She noted that the council was busier in the last two years than at any other time in its history. 5:36:55 PM Ms. Dipietro discussed the attorney versus non-attorney members. She pointed out the merit selection system in other states. She informed the committee that the majority of states (18) had even splits of attorney/non-attorney members. She mentioned five states with more attorney members, but four of the five had the additional requirement that no more than half of either group may be of the same political party. Alaska's system was without regard to political affiliation. The other states created balance by prohibiting a majority of people in one political party. Ms. Dipietro quoted the founders from the Constitutional Convention, "the whole theory of the Missouri Plan is that in substance, a select and professional group licensed by the state can best determine the qualifications of their brothers." She noted that the select group was the Alaska Bar Association, which was created by the legislature by statute. Another quote, "the intent of the Missouri Plan was in substance to give a predominance of the vote to professional men who knew the foibles, the defects and the qualifications of their brothers, it is unquestionably true that in every trade and every profession, the men who know their brother careers the best are the men engaged in the same type of occupation." Lastly she quoted, "the theory on the lay members on the confirmation, they represent the public and they represent the predominant political thought, the theory on the lawyer members of the council, they represent the profession, they represent a desire to have the best judges on the benches." Co-Chair Meyer appreciated the data in the charts. 5:39:30 PM MR. WALTER CARPENETI, SELF, JUNEAU, gave a brief personal history. He testified as a former judge that there was not a demonstrated need for a change in the constitution, which had served the state well for 55 years. He believed that the system balanced the competing interests in judicial selection and he saw a number of problems with the proposed legislation. He mentioned a letter to the Senate Judicial Committee (copy on file) related to the problems with the proposal. Mr. Carpeneti discussed the state's constitution and its wide administration. He served as Chief Justice for three years and attended multiple national conferences. He reported that Alaska's method of judicial selection was widely lauded by judges around the country. The constitution was amended infrequently and only done so with great need. He did not see a need to amend the constitution. He appreciated the presentation from Ms. Shadduck stating two reasons to change the constitution. The first was to increase geographic representation and the second was the perceived conflict position of the Chief Justice when called upon to vote. Mr. Carpeneti acknowledged that the governor made appointments with due regard for geographic representation. He suggested that a problem may exist in the method in which the appointments were executed versus an issue in the constitution itself. He did not see how the proposed legislation would alter the existing process. He argued that the legislation failed to address the issue of geographic representation. Mr. Carpeneti discussed the argument that the Chief Justice's vote constituted a conflict of interest. He broke ties rarely during his time as Chief Justice, but he never felt a conflict position. He mentioned one occasion where he cast a vote where the applicant was a Superior Court judge. He could not see an opportunity for a conflict of interest. He stressed that the conflict was not attorney versus non-attorney. He noted over 1100 votes over the last 30 years where 1 percent of the time a split vote was broken by the Chief Justice. He urged the committee to refrain from amending the constitution for a recent history comprised of very few votes. 5:46:34 PM Mr. Carpeneti discussed the need to send the best candidate to the governor. He cautioned the committee about amending the constitution that produced a judiciary that was the envy of other states. The Alaska judiciary was not the subject of scandal, corruption, kick-backs or other problems seen in more politically selected judiciaries. The focus of the bill was narrow, and he worried that the proposed changes would not benefit the state. Mr. Carpeneti stated that he served as a council member in the early 1980s. He concluded then, that Alaska had a two- step process with a merit/political plan. He used the term political as it related to policy and its proper formulation. He stated that the merit portion included the Alaska Judicial Council who polled every lawyer in the state including judges that the applicants appeared in front of and lawyers on the other side of specific cases. The council requested a writing sample, credit reports and criminal records. Candidates were rated on competence, intellect, temperament, integrity and fairness. At least two names must be submitted by the council. Mr. Carpeneti noted that the governor was elected by the people and would account for the candidate's general philosophy and their approach to problems. He worried about an unbalanced proposal as it ran the risk of losing the merit aspect of the process. He opined that Article IV of the constitution served the state well over the years. He urged caution in changing the system. 5:51:10 PM Vice-Chair Fairclough recalled that eight states had a system similar to Alaska's. She asked to know more about the predominate systems. Mr. Carpeneti replied that he was poorly informed about the process in other states. He noted that approximately half of the states with merit-based election systems had commissions that were evenly split between attorneys and non-attorneys. He stated that he had not felt compelled to research other state's systems because Alaska's worked so well. Vice-Chair Fairclough corrected that 38 states had similar systems to Alaska's. Co-Chair Meyer limited public testimony to two to three minutes. 5:52:51 PM ALISON ARIANS, SELF, ANCHORAGE (via teleconference) testified as a small-business owner against SJR 21. She stated that she appreciated efficiency, limited bureaucracy and expert advice. She agreed with the process of the Alaska Judicial Council and opined that adding members would increase the travel budgets. She stated that she was comfortable with attorneys evaluating their peers. She respected the opinion of the Chief Justice if needed for a vote. She stated that the citizen members of the group deserved credit for their ability to make good decisions. She cited that only 15 out of 1100 votes resulted in the Chief Justice siding with the attorney group against the public members. She spoke about her volunteer work as a guardian ad litem for children. She wanted to feel sure that she would vote for well-qualified judges. 5:54:52 PM DANIEL CHEYETTEE, SEALASKA FEDERATION OF NATIVES, ANCHORAGE (via teleconference), testified in opposition to the legislation. He echoed reasons for the opposition from prior testifiers. While his group would like to see more Alaska natives on the bench as members of the judiciary, the solution would be to encourage native Alaskans to attend law school and become judges. The Alaska Federation of Natives (AFN) believed that the current Alaska Judicial Council system worked well. He mentioned the state court system with multiple talented and respected judges. He disagreed with the effort to change the system. He worked as an attorney and noted the incredible time commitment offered by members of the Alaska Judicial Council. He feared that an increase in the size of the council would require too great a commitment from the members. He suggested that the proposed expansion might lead to a system with less responsibility. 5:58:43 PM DAVID LANDRY, SELF, ANCHORAGE (via teleconference) testified against SJR 21. He explained that he worked as a small-business general contractor. He stated opposition to the resolution because of the devaluing of professional opinion exhibited in the bill. He assumed that each case presented before a judge had an attorney with an opposing side of an issue or lawsuit. He believed that the attorneys operated as business people without monolithic political views. He mentioned his own practice of seeking advice from other contractors about his peers for the most valuable business partners. He stressed the importance of the Bar Association in the selection of judges. He argued that the resolution was a solution in search of a problem. 6:01:44 PM GEORGE PIERCE, SELF, KASILOF (via teleconference) testified in opposition to the legislation. He opposed the resolution because the current system worked so well. He commented on the data presented and noted that 15 instances of a Chief Justice voting in favor of attorneys did not mandate a constitutional change. He stated that the bill would allow the governor to have control of the Alaska Judicial Council, which would provide the opportunity for political seeding. He noted the lack of evidence for the need to change the system. He stressed the lack of evidence of discrimination in the votes. He found it concerning that the judges would be selected by the governor versus by the people. He argued against the need to amend the constitution. 6:04:12 PM Co-Chair Meyer CLOSED public testimony. He asked how long the members were appointed. Ms. Shadduck replied that members were appointed for six years with staggered terms. Co-Chair Meyer discussed the concern that a conservative governor could appoint conservative members and vice versa. Ms. Shadduck replied that the terms would be staggered when additional members were added via the resolution. Vice-Chair Fairclough asked if the bill would change the vote of the people for judicial retention. Ms. Shadduck replied that the resolution did not address the judicial retention election process. She pointed out that the public currently had a voice when judges were already appointed. The resolution would allow for a greater public voice in the beginning of the selection process. SJR 21 was HEARD and HELD in committee for further consideration.