SJR 3-CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL  1:34:29 PM CHAIR HUGHES announced that the first order of business would be SENATE JOINT RESOLUTION NO. 3, Proposing an amendment to the Constitution of the State of Alaska relating to the membership of the judicial council. CHAIR HUGHES made general remarks. 1:35:04 PM At-ease. 1:40:35 PM CHAIR HUGHES reconvened the meeting. The committee was given an introduction to SJR 3 on Friday, April 12. 1:42:00 PM SENATOR SHOWER said some remarks and comments were made at the last hearing that pivoted from the goal of SJR 3, which relates to the foundational principles from a constitutional perspective. He offered his belief that the hearing was "all about politics." He said he would like to redirect the narrative to the reason for the resolution. 1:42:49 PM SCOTT OGAN, Staff, Senator Mike Shower, Alaska State Legislature, Juneau, on behalf of the sponsor, stated that 13 of 55 delegates at the constitutional convention were attorneys. He reviewed a list of consultants who assisted the Alaska Constitutional Convention. Earnest Bartley, Professor of Political Science, University of Florida authored a 1958 book, "Principles and Problems of State and Local Government." Dayton McKean, Ph.D., professor, University of Colorado, Boulder, worked with the committee on a legislative article. Vincent Olstrom, Ph.D., professor, University of Oregon, worked with the committee on the natural resources article. Weldon Cooper, Ph.D. professor, Department of Political Science, University of Virginia, worked with the committee on local government. Sheldon Elliott, Ph.D., Director, Institute of Judicial Administration, [New York University School of Law, New York, worked with the committee on the judicial article. Mr. Elliott authored the 1959 publication "Collected Studies on Judicial Administrations." He elaborated on Mr. Elliott's background in New York. In May 1958, the League of Women Voters in New York asked the institute to prepare a new judiciary article for the New York State Constitution. That plan was for a statewide integrated court system that was centrally administrated and financed. MR. OGAN continued to list the consultants. Dr. Kimbrough Own, professor, Louisiana State University, worked on the committee on style and drafting. John Bebout, National Municipal League, New York, worked on the committee on local government article. Emil J. Sady, Brookings Institution, worked with the secretary of the Alaska Constitutional Convention on administration and organization of the records. He characterized the consultants as a very qualified group. 1:45:20 PM SENATOR SHOWER referred to some of the counter arguments made by [Nancy Meade, General Counsel], Alaska Court System, during the [April 12] hearing on SJR 3. He agreed that the delegates voted in favor of the constitutional amendment on the Alaska Judicial Council by a vote of 49-4. Some of the consultants disagreed, as he stated during the previous hearing, so he will not reiterate their comments. He said he suspected that the court system would try to make this about politics. However, [SJR 3] is not about politics. It would remedy a small foundational flaw in the structure [of the Alaska Judicial Council], he said. He added that some states require confirmation of judges and other states elect judges. He provided some background for pre-Alaska Constitutional Convention, that in the early 1900s the burgeoning Alaska territory saw voting turnout by Alaska Natives on the rise. By 1922, the numbers of Alaska Native population voting were higher than the non-Native population in the territory. In 1924, the U.S. Congress conferred citizenship to all non-citizen Indians born within the territorial limits of the U.S. The Alaska Territorial Legislature responded by enacting a literacy law requiring that voters be able to read and write the English language. It also passed laws limiting the ability of Alaska Natives to be citizens, participate in the political process, or enter certain public establishments. SENATOR SHOWER said that the Constitution of the State of Alaska also required an English literacy requirement as a qualification for voting, which was repealed in 1970. Thus, at the time the Constitution of the State of Alaska was being crafted, Alaska's indigenous representation was provided solely by one person, Frank Peratrovich, Klawock. At the time, the Alaska Native population constituted a significantly higher percentage of the territory's population, he said. SENATOR SHOWER said his point is that some groups were underrepresented with a very small group of experts participating, but the [indigenous] residents of Alaska were underrepresented. CHAIR HUGHES asked whether he would relate that to [SJR 3], which would require confirmation [of the attorney members] by the legislature. SENATOR SHOWER recalled a previous discussion that indicated the Alaska Constitutional Convention was well represented. However, the majority of the population was represented by one person. He offered his belief that this is germane to the discussion. He wondered what would have happened if the majority of the delegates had been Alaska Natives. He said it was something to consider. CHAIR HUGHES acknowledged one of the sponsor's foundational points, that power is inherent with the people. 1:49:00 PM SENATOR MICCICHE remarked that it is easy to get far off topic during discussions. He asked the sponsor to clarify the reason the resolution is important and what it solves rather than to disagree with one of the testifiers. CHAIR HUGHES acknowledged that some questions arose, so providing the history is important. She said Ms. Meade, Alaska Court System, made it clear that [the structure of the selection process for members of the Alaska Judicial Council] was intentional and the current question is whether the Alaska Constitutional Convention [delegates] made a mistake. 1:50:32 PM SENATOR REINBOLD asked for further clarification on the resolution. She asked whether the resolution would require members of the Alaska Judicial Council be confirmed by the legislature. SENATOR SHOWER reviewed the composition of the Alaska Judicial Council and the judicial selection process and responded that the [short] answer is yes. 1:51:44 PM SENATOR SHOWER reiterated his intent for SJR 3 is to provide a "tweak" to the constitutional provisions. He expressed concern that the testimony given [during a previous hearing on SJR 3] misstated his goal [with SJR 3] was to select conservative judges, which he thought "politicized" the discussion. He wanted the record to reflect that the [Alaska Court System's] contention is [SJR 3] is about politics. However, he contended that [his goal] is to correct a small flaw in the constitutional premise. The Alaska Constitutional Convention set up a system in which three attorneys and the chief justice of the Alaska Supreme Court can pick every single judge in Alaska because those names are sent to the governor to be nominated. He characterized it as an oligarchy. The court system is one-third of Alaska government, he said. He offered his belief that the people have been removed from that process and the system does not provide a mechanism for votes to be overridden. "If the seventh tie breaker was not a lawyer or the chief justice, perhaps there would not be any bias," he said. Only lawyers can choose from their own pool, comprised of 0.6 of the population, who will sit on the bench. He clarified that judges are appointed and not elected. He acknowledged that after an election cycle, judges are retained. He said that he has pages of notes that refute the arguments and points made at the last hearing, but he would not spend any more time on it. He concluded that SJR 3 would change the system of selecting judges in Alaska. One argument that was somewhat made at the last hearing is that legislators cannot divorce themselves from politics and be objectives [during the confirmation process], but somehow judges are objective. He said that everyone is human and influenced by their biases or else none of us are. It does not only apply to one branch of government, that it is a two-way street. 1:56:12 PM CHAIR HUGHES said that it is a two-way street. She would say [SJR 3] is not about politics but it is about accountability. At this point accountability is not a factor until judges are up for retention and [SJR 3] would change it so it applies on "day one." She thought one interesting point made at the last meeting is that attorneys are also constituents. She pointed out that her dad was an attorney and two of her siblings are attorneys. Although she loves attorneys, they are not a class above other people. The legislature does not allow other boards and commissions to appoint their own members and she did not think the [Alaska Judicial Council] should do so either. 1:57:25 PM SENATOR REINBOLD pointed out that SJR 3 only changes 15 words. She said that she would prefer to have judges elected because they need to be vetted. She offered her belief that there is substantial political activism from the judicial branch. She said she supports SJR 3. SENATOR SHOWER pointed out that lawyers would still select from lawyers and that would not change. He said that this would add one last cross check from the voice of the people over the members of the [Alaska Judicial Council]. It does not pertain to who is selected to be a judge. He characterized it as a miniscule step in the process. 1:59:02 PM SENATOR MICCICHE related his understanding of the mechanics. He said that three [attorney] names would be forwarded to the governor, to be confirmed by the legislature [to serve on the Alaska Judicial Council]. If the legislature failed to confirm the appointees, the process would start again. He asked for further clarification on any contingency in place for the Alaska Judicial Council to operate if it does not have an adequate number of members. MR. OGAN said that could be done by statute, although the resolution is silent. He said it could imply that someone else could be appointed and wait for the next confirmation hearing. SENATOR SHOWER said that he has been trying to stay at the highest level by looking at the foundational change and refrain from looking at statutes, regulations, and policies at this point. 2:00:57 PM CHAIR HUGHES opened public testimony on SJR 3. 2:01:54 PM ELEANOR ANDREWS, President & CEO, Andrews Group, Anchorage, stated her opposition to SJR 3. She said that she previously served on the Alaska Judicial Council as the lay person. She also previously served as the commissioner of the Department of Administration and on the boards for the Chamber of Commerce, Commonwealth North, and every Anchorage civic organization. She said that as the lay person on the Alaska Judicial Council, she had the opportunity to argue with and negotiate with lawyers. She did not believe the attorney members overpower the non- attorney members. She said that Governors Murkowski and Knowles did not pick candidates from the three members selected by the council. She said groups of legislators threatened members because someone did not get appointed. She said she has been threatened during the confirmation process that she would not be confirmed. She said that the current system provides for justice, which is what she really cares about. In closing, she said the system works and is a model system. 2:04:04 PM DAVID LANDRY, representing himself, Anchorage, stated that he is a construction contractor in Anchorage and opposes SJR 3. He recalled that Senator Micciche hit on two things, and the use of lawyers in the selection process is a wise use of expertise. He said that limiting that in any way would be a rookie business move and is not how businesses work. He said that lawyers provide invaluable expertise. He offered his belief that the confirmation hearing process would be a political litmus test. 2:05:21 PM ERIC MCCAULUM, representing himself, Anchorage, stated that he works for a North Slope supplier and he has worked in construction and fishing for the last 35 years. He said he is also the main investor in a company, Triverus [Cleaning & Environmental Solutions], who was just awarded a multi-million- dollar contract to supply the aircraft cleaning deck equipment to the U.S. Navy. He said that the Alaska Judicial Council process has worked for over 40 years. The chief justice of the Alaska Supreme Court has been the tiebreaker in less than one percent of the cases. Alaska had the advantage of reviewing other states' constitutions and learning from their mistakes. CHAIR HUGHES stated that the public can submit testimony to Senate.Judiciary@akleg.gov. 2:07:05 PM JOE MILLER, representing himself, Fairbanks, spoke in support of SJR 3. He said he has served as a federal and state magistrate, an acting district court judge, and a lawyer. He has applied to be a judge. He said that his wife sat on the Alaska Judicial Council. He said that lawyers are viewed fairly negatively, and it is a biased demographic. He said that lawyers constitute a very small percentage of the population that controls the outcome of judicial selections. He said beyond the 4-3 vote, it also extends to the Alaska Judicial Council's staff selection, and reports generated by the council that constitute an influential part of the process. He said the judiciary branch is the branch that the founders feared most. He said that the legislature needs to take the time to make this change. 2:08:10 PM CAROL CARMAN, representing herself, Palmer, testified in support of SJR 3. She agreed with the sponsor that more oversight is needed. She also echoed Mr. Miller's testimony regarding bias and politics. She preferred that judges be elected, she said. 2:08:49 PM WES KELLER, representing himself, Wasilla, testified in support of SJR 3. He said that this could be the most critical issue on the docket in the legislature. It is about asserting legislative powers. He said that SJR 3 will address a potentially fatal flaw in the Constitution of the State of Alaska. There is an imbalance of power, he said. He said that SJR 3 will tweak the constitutional flaw and give the legislature the right to say no. 2:11:07 PM JOHN BIOFF, General Counsel, Kawerak, Inc., Nome, said that Kawerak, Inc. is a regional Native non-profit consortium in the Bering Strait region and is comprised of 20 federally recognized tribal governments. The consortium submitted a letter in opposition to SJR 3 signed by Frank Katchatag, Chair, who served as the Board of Directors for Kawerak, Inc. The board, comprised of people, not lawyers, opposes this to ensure that politics does not enter into the process [of selecting members to serve on the Alaska Judicial Council]. The committee held discussions that indicated this is not about politics, but it truly is, he said. The current process allows subject matter experts, who are attorneys, to have a say, side-by-side with citizens. The process is not broken and does not need to be fixed. 2:12:21 PM LYNETTE CLARK, representing herself, Fox, spoke in support of SJR 3. She offered her belief that judicial activism present in the Lower 48 has filtered its way into Alaska's courts. She said she is one of the people covered by Article I, Section I and II of the Constitution of the State of Alaska and she would like her voice honored. She sees this as a way to be better represented by the legislature. 2:13:42 PM LARRY BARSUKOFF, Director of Operations, Alaska Policy Forum, Anchorage, said that he supports legislative confirmation of all members of the [Alaska] Judicial Council. He considers himself an informed voter but fully researching the ten or so judges during a retention vote is not a high priority, so he relies on the Alaska Judicial Council to do so. He surmised that the average voter also trusts the judgment of the Alaska Judicial Council. He offered his belief that industry insiders have a natural advantage over members of the public since they are the experts, and the public tends to rely on industry members. He mentioned this to show the power of the individual members [of the Alaska Judicial Council], especially those selected by the Alaska Bar Association. He said that the founders of the U.S. worked hard to dilute authority in the same way the authors of the Constitution of the State of Alaska sought to ensure sovereign authority remained with the citizens of Alaska. 2:15:27 PM WALTER (BUD) CARPENETI, Board Vice President, Justice, Not Politics Alaska, Juneau, spoke in opposition to SJR 3. He said the sponsor stated that three attorneys and the chief justice can determine on their own all of the judges, which he took to mean was the basic statement of the problem. This system has worked very well for 60 years, so what problem needs to be fixed, he asked. Former Representative Wes Keller stated that that there is a potential fatal flaw in the system, he said. However, every chief justice has been confirmed by a majority of the statewide voters. He provided factual history to refute that three attorneys and the chief justice have taken over the power [on the Alaska Judicial Council]. Since 1984, the [Alaska Judicial] Council has voted on 1,389 judicial candidates. More than 80 percent of those votes have been 5-1 or 6-0 because the council members work well together, he said. Second, 75, or five percent, of the votes resulted in 3-3 tie votes. However, 19 of the 75 tie votes had all of the attorneys on one side and all the non-attorneys on the other side, he said. In those instances, 75 percent of the time the chief justice voted to forward the names to the governor. The system does not seem to be a system that has problems, he said. MR. CARPENETI agreed that all power resides in the people. He said that this means that the Constitution of the State of Alaska can be changed, which is what the committee is currently debating. He disagreed with follow-up statements that the branch that is supposed to balance the other branches has no check itself. "That's just not right," he said. The legislature can and often does overturn statutory decisions. It has the power of the purse. The governor has the veto power. The Alaska Bar Association itself is created by the legislature. The Board of Governors of the Alaska Bar is comprised of three public members. The legislature and the governor have a lot of power over the [Alaska] court system, he said. It is not accurate to say there is no balance. The question is whether the current balance should be upset, and he responded that his recommendation is that it should not. 2:18:44 PM CHAIR HUGHES, after first determining no one wished to testify, closed public testimony on SJR 3. [SJR 3 was held in committee.]