December 9, 1955
PRESlDENT EGAN: The Convention will come to order. We have with us this morning Chaplain Major Henry A. Foss of Ladd Air Force Base. Chaplain Foss will give the daily invocation.
CHAPLAIN FOSS: Eternal loving Heavenly Father, we raise our hearts in gratitude to Thee Who has been the guiding and sustaining force and power within our lives throughout the days and years of the history of our nation. We thank Thee for this occasion and this assembly which is gathered here for the transaction of this important business. We pray Thee that we may be guided by Thy Spirit in mind, in heart, in our deliberations and actions that may determine a course and path of life that may bring happiness and welfare for the common good of all concerned. We ask in His name and for His sake. Amen.
PRESIDENT EGAN: The Chief Clerk will call the roll.
(The Chief Clerk called the roll at this time.
CHIEF CLERK: Two absent.
PRESIDENT EGAN: A quorum is present. The Convention will proceed with the regular order of business. Does the special Committee to read the journal have a report to make at this time?
WHITE: Mr. President, the Committee to read the journal has read the journal for the 29th and 30th days, Tuesday and Wednesday, December 6 and 7, respectively, and recommends their adoption without change.
PRESIDENT EGAN: Mr. White asks unanimous consent that the journals of the 29th and 30th Convention days be adopted.
WHITE: I beg your pardon. Correction. The journals for the 28th and 29th days.
PRESIDENT EGAN: Mr. White asks unanimous consent that the journals of the 28th and 29th days be adopted by the Convention. Is there objection? Hearing no objection it is so ordered and the journals are ordered adopted.
WHITE: Mr. President, the Committee to read the journal has read the journal for the 30th day, Wednesday, December 7, and on page 2, sixth paragraph, in the middle of the page, beginning . Coghill", instead of "Administration Committee" say "Committee on Administration". Two paragraphs below that "Mr. Londborg asks that the consideration , strike "the". Three paragraphs below that is the same situation. "Mr. Londborg
moved that the", strike "the". Page 4, fourth paragraph, second line, after "12:15" insert o.clock p.m. The Committee to read the journal, Mr. President, recommends the adoption of the journal for the 30th day with these corrections.
PRESIDENT EGAN: Mr. White asks unanimous consent for the adoption of the journal for the 30th day, with the proposed amendments. Is there objection? Hearing no objection it is so ordered and the journal of the 30th day with the proposed amendments is ordered adopted. Are there any petitions, memorials or communications from outside the Convention?
CHIEF CLERK: No.
PRESIDENT EGAN: Are there reports of standing committees? Reports of select committees? Mr. Sundborg?
SUNDBORG: Mr. President, your committee to suggest arrangements for hearings during recess has had placed on the desk of each delegate a report which, since its preparation, has been approved by the committee chairmen. The committee chairmen asked that it be submitted to the Convention for such action as the Convention desired to take on it. I would like to say that this report and the arrangements suggested therein were compiled from the questionnaires which the members filled out and turned in to the Chief Clerk. Since the time that the report was prepared, we have made some slightly different arrangements respecting compensation and per diem than many members contemplated at the time they filled out the questionnaires and so it is possible there will be some changes which we will want to make in the schedule of hearings. I would like to explain that several principles which guided your committee in setting up this schedule of hearings were as follows: first of all, we scheduled delegates for hearings only in their home communities except in the case of those who are remaining in Fairbanks and who are here from other places and except that Mrs. Hermann, who is going to Nome anyway and who was elected at large in the Territory, would be scheduled for a hearing in that City. We also had the guiding principle that no delegate would be set down on the schedule for a hearing in more than one place. Since I know there will probably be several members who want to suggest changes in this as far as their own plans are concerned, I would like to suggest to the Convention that we take a brief recess during which those members could contact the Committee and then we will bring the resolution out on the floor and I will move its adoption with certain amendments.
PRESIDENT EGAN: If there is no objection the Convention will stand at recess for a few minutes. The Convention is at recess.
PRESIDENT EGAN: The Convention will come to order. Mr. Sundborg.
SUNDBORG: Mr. President, I ask unanimous consent to revert to the order of business dealing with introduction of resolutions.
PRESIDENT EGAN: Mr. Sundborg asks unanimous consent to revert to the order of business of introduction of resolutions. Is there objection? If there is no objection it is so ordered.
SUNDBORG: Mr. President, I move and ask unanimous consent that a resolution consisting of the matter contained in the report to the Convention by committee chairmen, which was distributed to the delegates yesterday, be adopted by the Convention with the following changes: On the first page, item 1, after the word, "hearings" strike the words, "of not to exceed two days". On line 2 insert a comma after the word "Anchorage" and strike the word "and" immediately following. Change the period after "Fairbanks" to a comma. Strike all of the next line which is the first line of the second paragraph. In the following line, which is line 4, strike "Kotzebue and insert in its place "Unalakleet". In the next paragraph, second line, strike Unalakleet" and insert in its place Kotzebue". On page 2 the fourth item, strike "Kotzebue -- Mr. Cross" and insert "Unalakleet -- Mr. Londborg". In the last of the places shown for hearings, Fairbanks, strike the first name, "Mr. Barr". Item 5, second line, after the word "Convention" insert the words "if possible".. Mr. President, I would like to now read item 1 where we made several changes so all delegates will know how it reads if the changes are adopted.
Hearings shall be held at Ketchikan, Juneau, Anchorage, Fairbanks, Wrangell, Petersburg, Sitka, Haines, Klawock, Nome, Unalakleet, Kodiak, Cordova, Seward, Homer, Palmer, Dillingham, Valdez and Nenana."
One additional amendment has just been called to my attention. On page 2, the third place name, Nome", strike the words "and Mr. Londborg". Mr. President, I move and ask unanimous consent for the adoption of the resolution as amended.
PRESIDENT EGAN: Mr. Sundborg moves and asks unanimous consent for the adoption of the resolution as amended.
KILCHER: I object.
SUNDBORG: I so move.
PRESIDENT EGAN: Mr. Sundborg so moves. Who seconded the motion?
WHITE: I second the motion.
PRESIDENT EGAN: Mr. White seconded the motion. When a person
seconds the motion they should also get up and address the Chair so it will be easier for the secretariat to see who it was. The motion is open for discussion. Mr. Kilcher.
KILCHER: Mr. President, I am sorry that I have to object. The reason is that in spite of having contacted the Committee of three on a matter of importance, no consideration has been given to my objection.
PRESIDENT EGAN: Mr. Sundborg.
SUNDBORG: I wonder if I could interpose that we did give consideration in the Committee to Mr. Kilcher's objection, and the Committee unanimously discarded it. We did give consideration to it, Mr. Kilcher.
KILCHER: I stand corrected. The Committee has adopted rules in putting up this report that have nothing to do with the need at hand in holding hearings, in my opinion. The Committee was led by its commendable desire of simplicity and savings. If we are not hypocritical about going to have hearings during this winter recess, we should have hearings where they are most needed, and the judge as to where the hearings are most needed, should be the delegate from his district. The delegate should have been contacted more as to their will and wishes. Those delegates that had two or three places of hearings should have been personally contacted as to which place they think is the most important or possibly which places are equally important. This has not been done for simplicity's sake and for matters of streamlining an arbitrary rule as set up by the Committee, to have one hearing or one delegate in his hometown,send him home, let him have a hearing and that should be enough. That is not logical. Namely, in my particular case, and I know of three or four others, cases, exceptions should be made. Personally, I know a hearing in Kenai is much more important for the sake of statehood, for the sake of ratification of the constitution, than Homer. I have a lot of time next spring and a lot of time during my stay in Homer area when I am home. I can influence these people, I can talk to them in small groups. I can have a hearing sure enough. But the place that needs hearings badly where people are utterly critical if not downright opposed to statehood are Kenai and Seldovia. I don't want to say I could influence them greatly. I would suggest that somebody be sent to Kenai, probably also to Seldovia. Maybe somebody should go down from Anchorage. If hearings are going to be held they should be held where they are needed, and if we spend 10.000 dollars for this Christmas recess you can spend another $500, for maybe ten extra hearings in places where they are badly needed, and one of them is Kenai. Somebody should be sent down there from Anchorage or Kodiak, I don't care. I would gladly go. It has been intimated in the Committee that once we delegates are sent home then it should be our duty to hold
further hearings. We may hold them. We are magnanimously given the freedom that we may hold other hearings for instance, Kenai and Seldovia. We may do that but without expense or prior notice. Why, they certainly need prior notice and certainly the expense to any hearing should be paid if the others are paid. If we are sent to one hearing in Homer and if we don't take that just as an excuse to go home for Christmas vacation we should also be paid the expenses to any other hearing held necessary.
COGHILL: I rise to a point of order. I believe this was thoroughly discussed yesterday on the other point of the recess. Therefore, I move debate be limited to five minutes.
PRESIDENT EGAN: Your point of order is out of order, Mr. Coghill. Mr. Kilcher has the floor. Mr. Kilcher, proceed.
KILCHER: From a financial point of view I could just as leave stay in Fairbanks. I have a lot of friends up here and interesting things to do. I would like to learn the country better. I could be well paid by per diem. I could stay here and get $300 pay for it. If I go home it will cost the Territory about $120 or $130, which is a nice savings. I don't see at all why a man should not be sent to another hearing place which costs the Territory possibly another $40 or $50. It is still much less than if a man stays here. I don't see why if I go home I should be penalized by spending a plane trip to Seldovia, which is about. $20 forth and back or a plane trip to Kenai which is about $30 on my own time and my own money just out of sentimental reasons when it is my duty as a delegate. I will do plenty as a duty of the delegate. I have done so before November 8 and I will do so after February 8, but if we are going to go to hearings where they are needed. I think we should get paid for it.
PRESIDENT EGAN: Mr. Sundborg.
SUNDBORG: I address two questions through the Chair to Mr. Kilcher? Mr. Kilcher, do you feel that a hearing in Kenai would be more desirable than a hearing in Homer?
KILCHER: It is equally desirable.
SUNDBORG: My second question was going to be, would you prefer we sent you down for a hearing in Kenai in place of Homer, if it is to be but one per delegate, which was our guiding principle.
KILCHER: I have many objections to your guiding principle for being an arbitrary one, but consequently I don't feel I can answer your question. They are equally desirable, there should be two hearings, possibly three.
PRESIDENT EGAN: Mr. Marston.
MARSTON: Before we send Delegate Kilcher down to Seldovia or wherever he is going, I want to know whether he is qualified to sell statehood down there, which he says he's going down there selling. I notice he said he never thought of statehood one way or the other before he was going to run for the Convention. So if he's going down there to sell statehood, maybe he has been converted. I would like to know.
GRAY: I move the previous question, Mr. Chairman.
PRESIDENT EGAN: Mr. Gray moves the previous question. Is there a second to the motion?
METCALF: I second the motion.
PRESIDENT EGAN: It has been moved and seconded that the previous question be ordered. All those in favor of ordering the previous question will dignity by saying "aye", all opposed by saying "no". The ayes nave it and the previous question is ordered. The question is, "Shall the resolution with the proposed amendments be adopted by the Convention?" All those in favor of the adoption of the proposed resolution will signify by saying "aye", all opposed by saying "no", and so the Convention has adopted the resolution as amended. Mr. Davis.
DAVIS: Mr. President, I think this is possibly a matter of personal privilege. At my own request I was not named as a person to hold, as to appearing on any of these hearings. For that reason I feel I am not entitled to travel either way or to per diem going to my home and back, and for that reason I would like to request that when the payroll clerk makes up the payroll that I not be given either travel or per diem.
PRESIDENT EGAN: The Chief Clerk will make a note as to Mr. Davis's request. Are there any proposals to be presented at this time? If not, are there any motions or resolutions to come before us? Is there any unfinished business? Under unfinished business we will revert to the reading of communications. We have one from outside the Convention. The Chief Clerk may proceed with the reading of the communications.
CHIEF CLERK: Letter from Mrs. Laura Jones. (At this time the Chief Clerk read a letter from Mrs. Laura E. Jones, 8th grade teacher in the Fairbanks schools, thanking the delegates for the invitation extended for her class to attend a plenary session and to be guests of the delegates at lunch.)
PRESIDENT EGAN: Were there 28 children in that group?
CHIEF CLERK: Twenty-eight.
PRESIDENT EGAN: That would be, if the Chair might say so,
that would be approximately -- it might be that each two delegates could take one of these children. I am just suggesting what might happen here, as we go down the alphabet, except in the case of Mr. Hinckel. The Chair notes there are two Hinckel boys on that list. Mr. Hinckel being of the same name, you would want to have your alphabetical listing changed. Is there any suggestion as to how we should proceed in this situation? Mr. Hurley.
HURLEY: Mr. President, I think your suggestion is very well taken, and I will move that two delegates take charge of one student for the luncheon.
PRESIDENT EGAN: Every two delegates will take --
HURLEY: What I mean is I agree in substance. I think it is a good idea.
PRESIDENT EGAN: Is it the general agreement that each two delegates will take one of these children to lunch here on a certain day? Does somebody want to suggest as to what day? Mr. Cooper?
COOPER: Mr. Chairman, I would like to leave the date open to the Rules Committee on the date that they will put the next committee report in second reading on the calendar, so that the plenary session will not merely be a formality that they attend, and in line with that, that it be done if possible prior to recess.
PRESIDENT EGAN: Mr. Riley then if there is no objection would your Rules Committee attempt to report back to the Convention tomorrow so that we might send some communication back to the classroom?
RILEY: I expect we will have matters in second reading perhaps through Monday as the calendar now appears -- perhaps beyond that, dependent on what comes in meanwhile.
PRESIDENT EGAN: Is there any other unfinished business? Mr. Kilcher?
KILCHER: I would like to rise to a point of personal privilege.
PRESIDENT EGAN: If there is no objection. Mr. Kilcher, you may rise to a point of personal privilege.
KILCHER: How long may I speak, Mr. President?
PRESIDENT EGAN: There is no specified limit as to how long you can talk.
KILCHER: I would hate to be interrupted by a motion to cut it
don't intend to speak that long.
PRESIDENT EGAN: Mr. Kilcher, yesterday after the Chairman spoke, I don't mean to interrupt you, but it was called to the President's attention that we had adopted a resolution or motion that the tapes be cut off when the question of personal privilege, when a delegate rises to a question of personal privilege and owing to the fact that was brought to the attention of the President, he has no other alternative.
(At this time Mr. Kilcher spoke under the question of personal privilege.)
PRESIDENT EGAN: Mr. Kilcher, the Chair would like to additionally state that the remark was not directed at you particularly. It was something that the Chair feels that each and every delegate should recognize when he takes his feet at all times. Mr. Hellenthal?
HELLENTHAL: Mr. President, I should move, I believe there is no further unfinished business, I therefore move that we have a recess for a definite stated period of 15 minutes perhaps to get a cup of coffee. I move that we have a 15-minute recess.
PRESIDENT EGAN: Mr. Hellenthal moves and asks unanimous consent that the Convention stand at recess for 15 minutes. If there is no objection, the Convention is at recess for 15 minutes.
PRESIDENT EGAN: The Convention will come to order. If there is no other unfinished business we will proceed with the general orders of the day. General order of the day is consideration of Committee Proposal No. 2 in second reading. The Chief Clerk may proceed with the second reading of Committee Proposal No. 2.
(The Chief Clerk read Committee Proposal No. 2 for the second time.)
PRESIDENT EGAN: Before we proceed the Chair would like to announce that the University expects at least 100 additional people for lunch and they would like to have the tables, to be able to come down and get the tables at 11:45. The tables would be returned to this room at 1:30. We now have Committee Proposal No. 2 before us. The proposal is open for amendment section by section. Mr. Taylor?
TAYLOR: Mr. President, I believe the President should call to the attention of the delegates that attached to the copy of the committee proposal which is on everybody's desk is a
commentary which has been prepared by the Committee for the benefit of the delegates in construing the meaning of each section of the proposed article. Of course, so many of the sections are self-explanatory, but some of them possibly need a little explanation, and for that reason this commentary on the various sections we felt would be helpful and it might be the means of perhaps enlightening the members so there would not be too much discussion or time taken up in the consideration of the proposal.
PRESIDENT EGAN: Thank you, Mr. Taylor. Are there amendments to Section 1 of Committee Proposal No. 2? Does everyone have the copy of the proposal and a copy of the commentary on the judiciary article before them? Is there anyone else who does not have a copy? Mr. Marston also needs a copy of the proposal and a copy of the commentary on the article. Are there amendments to Section 1?
MCNEALY: I have an amendment.
PRESIDENT EGAN: Mr. McNealy, you may offer your amendment.
MCNEALY: Mr. President, I offer this amendment now only to preserve the future race.
PRESIDENT EGAN: The Chief Clerk may read the proposed amendment by Mr. McNealy.
CHIEF CLERK: "Strike Sections 4, 5, 6, 9, 10, 11, 12, 13, 14."
HURLEY: Point of order. Mr. President. I understood we were considering Section 1.
PRESIDENT EGAN: Mr. McNealy, would you mind if your proposed amendment were held until we come to Section 4? If it is the wish of the Convention we will determine first as to whether or not there are amendments to each section. Are there amendments to Section 1? If there are none we will proceed to Section 2. Are there amendments to Section 2? Are there amendments to Section 3? Are there amendments to Section 4? Mr. McNealy's amendment may be made at this time.
CHIEF CLERK: "Strike Section 4."
PRESIDENT EGAN: Are you moving that the section be stricken?
MCNEALY: I wish to move the adoption of the amendment striking Section 4.
PRESIDENT EGAN: Mr. McNealy moves the adoption of the amendment striking Section 4. Mr. Davis?
DAVIS: I did not hear what he said.
PRESIDENT EGAN: He moves the amendment to strike Section 4. Is there a second to the motion?
SUNDBORG: Mr. President, I will second for the purpose of allowing Mr. McNealy to explain what his intention and purpose is.
PRESIDENT EGAN: Mr. Sundborg seconds the motion to strike Section 4.
MCNEALY: Mr. President, I am not going to take a great deal of time today as I understand the bill possibly will be continued in second reading until after the recess and very likely it will not be necessary for me to speak upon all these amendments because probably my thought is included in my motion to strike Section 4. It states that, "Justices of the Supreme Court and judges of the Superior Court are appointed by the Governor on nomination by the Judicial Council as provided in this article." Being an attorney, I know the background of the appointment system of judges. Being an Alaskan I have lived under the appointment system so long that I feel that I should have the right to vote for these judges. The thought behind this I believe and the thought of the Judiciary Committee no doubt is to keep judges out of politics. In my opinion this appointment method will bring judges into politics more so than an election by the people. For that reason and in regard to many other reasons which I do not want to take up the time of the Convention to discuss now, I am opposed to the appointment by the governor on nomination by the judicial council.
PRESIDENT EGAN: Mr. McNealy, in order to clarify a statement that you just made, the Chair feels obligated to state to the delegates that anyone who is under the impression that any official action has been taken that will hold any proposal in second reading is wrong. There has never been any action that will hold anything in second reading officially as you mentioned, Mr. McNealy. If it was your feeling it might be held until after the hearings recessed, no such action has ever been taken, and the Chair wants to clarify that point to all the delegates. Mr. McLaughlin?
MCLAUGHLIN: Mr. Chairman, as Chairman of the Judiciary Committee, I feel in answer to the argument presented here and the proposal to strike, I feel it proper to point out to the Convention that I, probably in this Convention, was the only elected judge present in this Convention. I was twice elected as municipal Magistrate for the City of Anchorage. I might point out, not in vanity or pride but as a factual argument that I never lost, and never won by less than double the vote of any other candidate. The last time I ran my recollection is that I won four to one. If any man should be in favor of the elective system, it should be I. I might point out that in terms of the elective system no member of the Judiciary Committee and that
consisted of two laymen, one of whom had spent 15 years in law enforcement activities, never questioned the impropriety of having elective judges in Alaska. Historically, at the time of the adoption of the Federal Constitution, I don't believe that any state of the Union authorized the election of its judges. They were all appointed. When the elective system came in it was approximately the middle of the l9th century. It was found inadequate because of the fact that we will be confronted here in Alaska with not a nonpartisan judiciary but a judiciary that in substance would be dictated and controlled by a political machine. I am a partisan myself, but I don't believe that our judiciary should be subject to the influences where they would have to go to any clubhouse to secure their nomination or have to secure funds and sometimes excessive and exorbitant funds for the purposes of being elected. I might also point out that one of the dangers of the elective system is the fact that a judge whenever he makes a decision, he has to keep peering over his shoulder to find out whether it is popular or unpopular. If we determine the validity of our laws in terms of popularity as the general acceptance, we are then not a government of laws on which we pride ourselves. It is not the function of the judge to make the law, it is his function to determine it, and the way to keep them independent is to keep them out of politics. Historically, in terms of this document here there is nothing in it that is radical. There is nothing in it that is theory. All of it has worked. California, in 1932, adopted what is known as the Missouri Plan. That is a system of selection. One reason why we did not permit the governor of the state to pick candidates and have them approved or ratified by the senate or house of representatives was that it was discovered under the California plan that there was a tendency on the part of the governor to always pick men of his own political party, subject to the confirmation, not of the senate, but a group called a "committee on qualifications". He would just present them with a long line of Democrats or a long line of Republicans. Does the system work? The system does work. The method by which we determine how the judicial council would be created was -- we followed the Missouri Bar plan that has been in effect (when I say Missouri Bar plan, I mean the Missouri Plan which is part of Article 5, Section 29, of the Missouri Constitution) since 1942 and my recollection is that it has been ratified by the voters three times in succession. The complement of our judicial council, that is three selected directly by the bar association, three appointed by the governor, and the chief justice being ex officio member. The constitution of our judicial council is exactly the same as that in the State of Missouri. We did not follow the New Jersey Plan although the New Jersey Plan which has been sponsored by Chief Justice Vanderbilt, who is Chief Justice of the Supreme Court of New Jersey -- Judge Vanderbilt is not opposed to the Missouri Bar Plan -- but frankly because of the complexities of the New Jersey judiciary, they
could not get it through. In New Jersey the governor appoints and his appointment is ratified by the senate. In every modern constitution, and when I say modern constitution, with the exception of Hawaii which evaded the issue, in every modern constitution -- by that I mean all our latest -- Missouri, the State of New Jersey, and Hawaii -- they all provide for appointive judges and not elective judges. Have we compromised? Yes, we have -- we have compromised -- we have accepted the Missouri Plan. That means in substance what happens is that three lawyers appointed by the bar association as under the Missouri Plan, and the three laymen as appointed by the governor and approved by the senate initially determine who the candidates will be. What is the theory? The theory is you have a select group. The lawyers know who are good and they know who are bad. The laymen represent in substance the public in order to protect them in substance from the lawyers, but they are confirmed by the senate for one reason. The laymen in the committee insisted upon it so that we would have a broader base and the governor himself would not necessarily be able to nominate to the judicial council, his own house. The governor is presented with two names, two or more names, Missouri says three or more. We figured because of the size of the Territory, initially it would be preferable to present two names. The governor has no other choice, of the two names presented, he takes one, fills the vacancy in the court. In terms of the general acceptance of this plan is it radical? Is it new? Is it theory? No sir. It has been approved by the American Judicature Society. It has been approved by an organization I know which is, forgive me, I know I might affront many members here, which is renowned for its conservatism -- the American Bar Association. It has been in substance approved by the Alaska Bar Association, and it has been approved by probably the organization in the field which is most zealous in its idealism, the American Judicature Society. There is nothing unusual, nothing new. What we are trying to prevent are some of the travesties which have existed in some of the states where our judges are picked and plucked directly from the ward political office. Many of the members compromised. We are not happy, in a sense, with the compromise, but the only system that has ever worked apparently in recent years, has been a combination of the appointive and the elective. I might carry on a bit and point out what happens in terms after the governor does appoint from the list presented to him as under the Missouri Plan. Roughly, three and one-half or four years later, the judge is required, every judge without exception, is required to go on the ballot for approval by the voters. Does he have to spend any money? No sir. What is the requirement? The only requirement on a nonpartisan ballot could be, "Shall Judge 'Blank' be retained in office?" The Missouri Plan provides and the New Jersey Plan in substance provides (my figures are rough), that roughly a year and one-half after appointment the judge will be put on the ballot to determine whether or not the public desires to retain
him. It was the view of the Committee that in order to attract good men to become candidates, the only way we could assure the attraction of good candidates was to assure them they would be in office at least for a period of three and one-half years. Why is that necessary? Because after a year and one-half a judge might make a very unpopular decision, and he would not be able to overcome that in terms of popular resentment, and he might be forced out of office after a year and one-half. It is not universally true, but generally your best practitioners in the law are also the men who have the best income and the best practice. A man with good income and good practice will not be attracted to the bench if he feels that after a year and one-half, he will hazard his whole career. He has already hazarded his private practice. He will hazard his whole career with the possibility of being rejected. Three and one-half years is a good inducement. If he is reelected after three and one-half years then under our terms, the terms of our proposal here, he will then sit on the bench for a period of ten years if he is a supreme court judge or he will sit on the bench for a period of six years if a superior court judge and then he will automatically go on another nonpartisan ballot to determine whether he shall be retained or not. That compromises the difficulty in the American judiciary system, and when I say compromise, it is the best compromise and the best solution to a vexing problem between those who feel we should have lifetime tenure so the judges can be absolutely independent or whether we should have short terms so the judges could be subject to popular will. The popular will should be expressed even in the control of the judiciary, but the way to control it is to put the judge on a nonpartisan ballot. It does not cost him a nickel. He is running against himself, he's not running against anybody else. In terms of whether or not the lawyers would pick the poorest or the best, my answer to that is the answer of Benjamin Franklin who in arguing for appointive system pointed out that it would be very advisable to have an appointive system under the Federal Constitution because of the fact that every lawyer, having determined that a judgeship was open, would promptly designate and recommend the most successful of his brothers in order to steal his practice. Do the lawyers, do they have a vested interest in the proposition? Definitely they do, but as craftsmen or professional men they know best, who is the most desirable. Will you get unanimity on that Judicial council? If the Alaska Bar Association or if any bar association in this Territory or in the United States can be used as an example, as long as you have three lawyers you will have three different opinions. It is probably the most democratic and probably the only efficient system that has yet been devised. It is not a crackpot idea, it has worked and regularly. State constitutional conventions have adopted it. In general I might point out this -- this conforms generally to all the recommendations of the American Judicature Society, all the recommendations of the American Bar Association. It conforms
to the theory under which the Missouri Plan was adopted, and if this is adopted this will be (Hawaii avoided it) the most modern, most liberal, most workable judiciary article of all the constitutions of all the 49 states. Is it theory? Is it social planning? It is based on practice. It is based on experience, and it conforms to very good theory.
PRESIDENT EGAN: Mr. Londborg.
LONDBORG: Mr. President, may I direct a question in order to get information? According to your proposal, the judiciary council submits nominations, not less than two. What happens if the governor refuses to appoint either of the two or three as the case may be, if they do not meet with his approval?
MCLAUGHLIN: Others can be presented.
LONDBORG: Would he have the right to call for other nominations or must he stick with those originally presented?
MCLAUGHLIN: In theory the governor would be required to stick with those nominated.
LONDBORG: May I ask this, just for lack of information on my own part on the Bar Association who and how do people get into that? I take it they have to be lawyers.
MCLAUGHLIN: They would have to be lawyers, Mr. Londborg. There was no attempt made -- if we had started to define everyone's qualifications -- much of this will be left to the legislature, but normally that means lawyers.
LONDBORG: Then I'd like to ask this question, is it true that the judiciary council is composed of a majority of lawyers?
MCLAUGHLIN: That is true.
LONDBORG: That is counting the supreme court judge?
MCLAUGHLIN: That is true. I might point out that in Missouri, the appellate Judicial Commission (this is the Missouri Plan) consists of seven members, the chief justice, three elected lawyers,and three laymen appointed by the governor, and these are the ones that designate for the governor. They have subordinate commissions, the circuit Judicial Commission consists of two lawyers, two laymen,and the president and judge of the court of appeals.
PRESIDENT EGAN: Mr. Victor Rivers.
V. RIVERS: I have a question, Mr. President, that I would like to present to any member of the Judiciary Committee. That is this that I want to state first that I am very favorably
impressed with this particular section. The appointive power however clearing through the governor -- in most of the state impeachment clauses -- the two or three highest elective officials or any elective officials being impeached in ordinary procedure, the impeachment springs from the house and is tried by the senate with the chief justice sitting or some of the other supreme court justices sitting as the presiding officer of that body. Now we have a situation here, I am just wondering why the appointive power of the governor is invoked in this particular clause, because it would seem to me with the judicial council and the recommendations such as they have made, it might be best to submit the recommendation directly to the senate. The governor, if he were in a position where he is being impeached, would then have on the presiding bench on the body that was impeaching him a justice whom he had named for appointment and I wonder what the thinking of the Judicial Committee on that is.
MCLAUGHLIN: It is my understanding that Mr. Rivers has some potential objection to the appointment of the nominees to the bench by the governor. Is that right, Mr. Rivers?
V. RIVERS: No, it is more a question to get explanation on the floor as to what would happen in a case like this. I have a good deal of regard for the section you folks have drawn up. I regard it very highly as a layman, but I did want to find out what your thinking was as to why we had to clear the judges through the governor in any event. Why didn't they spring from this appointive and recommending body directly to the senate for confirmation rather than clearing through the governor in any instance, because there might be a conflict of interests if these supreme court judges were called to sit upon the trial of a man whom they had received their appointment from.
MCLAUGHLIN: The thinking of the Committee, Mr. Rivers, was that we wanted something that had precedent and that worked. It has worked in Missouri, it is working in a limited sense in New Jersey, it is working in California. That is, we wanted a practical precedent for it. We did not want to experiment. We did consider the possibility that the judicial council do it, but we wanted some participation by the executive in it, and in fact one of the laymen insisted, on the Committee, insisted that not only the governor appoint the laymen to the committee but they be ratified by the senate so we would have a full participation in the process. As you know, under the model state constitution, the chief justice runs for election and he designates the judges. It was the feeling of the Committee that that would be too much of a closed corporation, that is the chief justice appoints, in lieu of the governor, under the Missouri Plan, but since it had been untried,.the Committee didn't want to consider it. The fact of the matter is, there are many problems that we cannot anticipate, all
the problems that will arise, but we took the best available everywhere and we applied it and when the problems arise, then we will attempt to solve them.
PRESIDENT EGAN: Mr. Smith.
SMITH: I believe the mover of this amendment intimated that the Committee had based their favoring the appointive system on the basis that it would take the judgeships out of politics. I don't know what the Committee's thinking has been, but I certainly would not defend either the appointive nor the elective on the grounds that it would take the judgeships out of politics. I believe the political implications would be equal in either case. However, the appointive system does have the advantage of being selective as to the qualifications of judges. Quite often under an elective system a man is elected on his personal charm or his popularity and quite often his qualifications are not closely examined. Therefore, I would oppose the amendment.
PRESIDENT EGAN: Mr. Taylor.
TAYLOR: Mr. President, in regard to a question submitted by Mr. Rivers. Now I believe Mr. McLaughlin touched upon that, but I believe Mr. Rivers loses sight of the fact that the governor does not select any appointee that the only ones he can appoint to either the supreme court or the superior court are those men who have been selected by the judicial council, so the governor does not have any choice in the selection of the candidate for office. He merely appoints. I don't believe that that would create such a feeling of gratitude towards the governor from a man that was appointed to the supreme court or to the superior court that it would cause him to be derelict in his duties. Also I would like to point out that over many years there has been a great controversy in the legal profession throughout the United States. The American Bar Association Journal, which I have been receiving for some 27 years, periodically comes out with articles by various practicing attorneys and by judges, leading men in the profession, who have felt that a distinct change should be made in the selection of the judiciary. When the Missouri Plan was adopted, I believe it was in 1945, it was felt that there was a distinct improvement in the methods of choosing judges, that it abolished the necessity which had prevailed for many years of having to get out into the rough and tumble of a political fight, to spend money, perhaps depend upon certain groups for the support to get elected to a judgeship. Now in this particular instance we have got away from that necessity. We have the laymen and the attorneys -- and coming back to this attorney -- I might mention to the Convention that the attorneys now are organized in a body known as the Alaska Bar Association. It is an integrated bar, an official body of the Territory. Any person seeking to practice law in the Territory
of Alaska, before he can practice,must be a member of the Alaska Bar Association, and he is bound by the actions of the integrated bar, so it is through the integrated bar that these names are selected. It is a democratic election among the attorneys for the selection of these judges. I think Mr. McLaughlin has elaborated upon that as to the selection and the lawyers would know possibly who would be the most able sitting on the benches. The less lucrative practice the man has, the more he would like to see the able man who has been making the money step up there,he might get some of his practice. That is true. It was not original with Mr. McLaughlin. Thomas Jefferson or Benjamin Franklin said that. I feel that in view of the historical matters of selection of judges, which has not met with the approval, that we have before us now an article which we hope will be adopted as it is into the constitution, and I know that if this article is adopted by this Convention and becomes a part of the constitution that every university in the United States that has a law school and all law societies that have the opportunity of reading this article can honestly say that they have perhaps the most progressive and most modern and up-to-date system of selecting the judiciary of any state in the United States, and I would like to see this adopted by this Convention without one syllable or a comma or a period left out, just as it is. Mr. McNealy says, "Well, we have had judges appointed here for many years. I would like to protect those men." Perhaps Mr. McNealy has practiced under those appointed judges so long he is like the prisoner who after many years begins to love his chains.
V. RIVERS: May I ask a question of Mr. Taylor?
PRESIDENT EGAN: You may, Mr. Victor Rivers.
V. RIVERS: Mr. Taylor, if the governor does not appoint and the appointment springs from judicial council, why is not only one name recommended to him instead of two?
TAYLOR: It is to give a choice.
V. RlVERS: He has a choice power and appointive power?
TAYLOR: That is correct. I might say that there will be legislative act to implement these sections that are in here. He will have to appoint because it devolves upon him. There can be three to give him a choice if he wants them, according to what the legislature says.
MCNEALY: Mr. President, this matter I wish to assure the delegates is not personal with me, and if you will bear with me for a couple of minutes I am going to make the whole pitch, .so to speak, on this particular amendment. If this amendment fails then I am going to ask unanimous consent to withdraw all the
other suggested amendments for the purpose of saving time of this Convention,because if all the amendments were considered and argued upon, and I were fortunate enough to have a second, this discussion could go on for days and even weeks. I offer this amendment. I am not sold on the bill as it is. I am not particularly sold on the matter of the election of the judges by the public. I owe it to other attorneys who have asked me to offer this amendment and to laymen who feel that they should have the right to vote for all the offices that they possibly could vote for under a system of state government. I did not start in the law business as of yesterday. I have been admitted to the bar almost 27 years, and I did not have the funds to attend a university and the prior four years then I spent in the law office, and that was a continuous four years of work in a law office, so for more than 30 years I have been depending upon the law for my bread and butter, and on the point of having a successful practice, why that certainly should not prevent me from being one of those appointed if I ever desired to be a judge, which I don't think I could afford to because of probable pay scales, so I'll probably be appearing before the judges as long as I'm able to get around, possibly as long as old Judge Grigsby down in Anchorage or our Dean here, Julien Hurley. Now as far as your election of changing judges in office, I want to call attention to another old saw which has been in effect since time when the memory of man runneth not to the contrary and that is that judges never die and they very seldom retire. In this matter of running against the record, I want to argue that point just a minute. To say that the voters are going to have an opportunity now, it's going to be put on the ballot shall Judge So-and-so be reelected. Well, I can think of this situation, I am concerned about this. Judge So-and-so has been appointed, and he serves and he is on the supreme bench for ten years or is on the superior bench and has served for six years and then he runs against his own record. All of the attorneys that are practicing before this judge learned over this period of six or ten years that Judge So-and-so is a stinker. He comes down with some of the lousiest decisions. He steps on this fellow and that fellow, he does not follow the law. He hands down decisions that are unfair to people. Now, all of the lawyers know this situation, but the general public does not know. The general public does not pay too much attention to judges and what is going on in court unless it is your case that is before the court, so the time eventually rolls around -- the six or ten years -- and old Judge "Stinker" comes up to run against his record. So then the lawyers, if they can do it -- Mr. Taylor, to digress a minute, mentioned the American Bar Association. I am not a member of the American Bar Association. Never have been and never will be. If my memory serves me correct, there are probably only about 30 per cent of the lawyers in the United States that do belong. I am not going to state why I do not belong and why the other 60 or 70 per cent don't -- but the fellow comes up. The lawyers
then look over those now that belong to the American Bar Association at least, and possibly under our Alaska Bar Association, I haven't seen the Canon of Ethics adopted, or to be adopted, but if the members of the American Bar, under the Canon of Ethics, can do this, can get out and bring to the public's attention that Judge So-and-so should not be reelected, (and I question under the Canon of Ethics of the American Bar will allow it) then the lawyers carry on a campaign in the newspapers and over the radio and say that Judge So-and-so is no good and urge the public to vote against him. Now,I am speaking from years of experience as to how the public in general feel about the attorneys and I am in hopes that the Alaska Bar Association will so regulate our own ranks that the attorneys will be considered as professional men and not shysters in the future. But in carrying on this campaign with the general public, unless their minds are changed, they are going to say, "What is the matter, this bunch of lawyers here are trying to get rid of good old Judge Whoozit." So Judge Whoozit comes out, he doesn't have to spend any money campaigning, all he's got to do is tell the reporter, "This bunch of lawyers -- I have stepped on their toes in trying to carry out the laws as written and this bunch of lawyers are trying to sabotage me." Judge Whoozit will go back into office by the biggest vote that it is possible to give him. The only ones who will ever vote against him will be the lawyers and there's not enough of them in the Territory to have an effect on the election. If I were a judge and wanted to be continued in perpetuity in office, then I would want the attorneys to come out and recommend against me. Now, and as I said before, I am going to withdraw these others and this will be my last time on the floor if you will bear with me just a few more moments. Now,I would like to speak personally of the matter of politics involved. I don't think that running for a judgeship either, should be a popularity contest. But here we have three laymen appointed by the governor, three lawyers appointed by the bar association. I am looking ahead to a situation of this kind that will arise where a governor appoints three laymen, now the governor appoints these three laymen and they are beholden to the governor. The governor, be he Republican or Democrat, tells these three laymen, Here is Jones and Smith here now, they have been good party workers, they helped get me into office. Now,I want you three laymen on the board, Jones and Smith should be rewarded, so I want you to come up with their names." Then the three lawyer members don't agree. They want two different members to be appointed, so they come up with two. The three laymen members say to the governor, "What are we going to do?" The governor says "hang tough. Now,we have precedent for that. Take your Employment Security Commission here in the Territory, which is one of these two and two deals, two from labor and two from management, and they have not been able to agree on one single solitary important problem under the Employment Security Commission, and it is questionable that they ever will be able to.
They can't even agree, or haven't the last time I knew, on a bill which was passed in the last legislature hoping to break the deadlock by authorizing the four of them to get together and select a fifth member. So I can see an absolute stalemate in that regard. Going further, now currently the vast majority of states elect their judges. First I want to apologize to the Convention here about saying anything about Nebraska. That is where I studied law and where I was admitted to the bar,and being opposed to their unicameral system, maybe I should be opposed to the fact that they elect their judges. I have been an inactive member of the bar there for a great many years, and the other day I received a list of the judges that were still on the district court bench -- we called it district court there, not superior court were on the district court bench in Omaha. At the time I was there, in the late 20's and early 30's, we had 12 district judges in Omaha Douglas County, I should say. These 12 district judges ran for election every four years. I noted in the recent paper that I got from the Quarterly Law Review from the Bar Association that all 12 of these district judges are still on the bench in Omaha. They have been running for office every four years. They are good judges. The lawyers like them, the people like them. It is no argument that you are going to have inferior men on the bench simply because,if the judge is not a good judge, the people themselves are going to see that he is removed. Now, in closing, I believe it was on the floor that this constitution should be more or less of a fundamental document. I am in favor of a fundamental document. I believe that this judiciary article, with all due respect to the attorney members and the laymen members on the Judiciary Committee, that it could have been solved by saying, "There shall be a supreme court and such inferior courts as the legislature may establish from time to time", which would have taken care of the matter just as well. I assure you, ladies and gentlemen, I will not speak upon this subject again, and I thank you for this opportunity.
PRESIDENT EGAN: Mr. Ralph Rivers?
R. RIVERS: As a member of the Judiciary Committee, I would like to second the able presentation of our Chairman and to endorse the points brought out by Mr. Taylor. I was a member of the bar in Seattle when I was a young fellow, over 20 years ago, and there they had the election system. The judges had to file in a competitive political field every two years, and there was always that undercurrent that litigants were contributing to the judges' campaign funds. There was nothing improper for a person to contribute to the campaign fund, but there was an undercurrent of chicanery. It does not seem to be right that a man sitting on the bench should be the subject of contributions from various and sundry people, either presently litigants or people with cases pending. The best soap-box orator often times gets elected and your better
attorneys who have these qualifications we are all aware that are required would hesitate to throw their hats in the ring and get into that kind of a circus. I concur with Mr. Smith that this has the virtue of a screening process, an orderly screening process. We label it nonpartisan because the ability and qualifications should have nothing to do with the political party. But actually this is not only an approach at nonpartisanship although politics is bound to enter into it to a certain extent, this is a screening process which is the most important point involved. So I think that it is positive with some decency of approach and thinking the judicial council will seek for the best available timber, and we take a bow to the governor in taking his choice of two persons that are nominated, or three if we have that many to spare and are available to be nominated, but he has no alternative but to pick one of the names that are presented to him by the judicial council. There is the other point that there will only be six until a supreme court justice is appointed and the only chance for a deadlock would be on nominating two or three people for the office of supreme court justice. After that you have your seventh member and there will be no chance of a deadlock. I am willing to trust the integrity and good sense of the six people first appointed to judicial council to be able to agree on two or three nominations for chief justice, and I am willing to trust the governor to take his choice of those two or three names that are presented, so I see no serious problem of a deadlock in order to get the machinery fully implemented. I go along with Mr. Taylor that this Committee has given and taken and bumped its head, I should say the members have bumped their heads together. There has been some compromising and adjusting, but our composite thinking is better than the thinking of any one of the seven of us that constituted that Committee. I believe we have a constructive article, one of which we can be duly proud. So outside of letting the Style and Drafting Committee change a few commas, Mr. Taylor notwithstanding, and polish up a sentence or two, I hope it is adopted the way it is written.
JOHNSON: I move the previous question.
PRESIDENT EGAN: Mr. Johnson moves the previous question.
TAYLOR: I second the motion.
PRESIDENT EGAN: Mr. Taylor seconds the motion. The question is "Shall the --
SUNDBORG: Parliamentary inquiry, Mr. President. Is the matter of voting on the previous question debatable?
PRESIDENT EGAN: No, it is not, Mr. Sundborg.
SUNDBORG: I call for a roll call.
PRESIDENT EGAN: The question is, "Shall. the previous question be ordered?" A roll call is asked for, the Chief Clerk will call the roll. Mr. Smith?
SMITH: May I rise to a point of information? The previous question would be the vote on the amendment?
PRESIDENT EGAN: The previous question would be the vote on the amendment. What you will be voting on now is whether you should order that previous question. Mr. Davis?
DAVIS: Mr. President, the amendment is only to Section 4, is that right?
PRESIDENT EGAN: That is right. We are not speaking of Section 4 right now, Mr. Davis. We are speaking as to whether we will order the vote on Section 4. The Chief Clerk may call the roll.
(The Chief Clerk called the roll at this time with the following result:
Yeas: 41 - Armstrong, Awes, Barr, Boswell, Coghill, Collins, Cooper, Cross, Doogan, Gray, Harris, Hellenthal, Hilshcer, Hinckel, Johnson, King, Knight, Laws, Lee, McCutcheon, McLaughlin, McNealy, McNees, Marston, Metcalf, Nerland, Nolan, Peratrovich, Poulsen, Reader, Riley, R. Rivers, Robertson, Rosswog, Smith, Stewart, Taylor, VanderLeest, Walsh, White, Wien.
Nays: 12 - Davis, Emberg, V. Fischer, Hermann, Hurley, Kilcher, Londborg, Nordale, V. Rivers, Sundborg, Sweeney, Mr. President.
Absent: 2 - Buckalew, H. Fischer.)
LONDBORG: Mr. President, I would like to change my vote to "no".
PRESIDENT EGAN: Mr. Londborg wishes to change his vote to "no".
CHIEF CLERK: 41 yeas, 12 nays and 2 absent.
PRESIDENT EGAN: So the previous question has been ordered.
JOHNSON: I request a roll call on the previous question.
V. RIVERS: Is a question of personal privilege in order at this time?
PRESIDENT EGAN: If there is no objection, Mr. Victor Rivers.
V. RIVERS: I just want to say that we are acting in final action now on the amending of a bill, rather the amendment of a proposal. It seems to me not only good courtesy but good judgment that the previous question and final action should be used very charily. I can see using it late at night after many hours of debate, but it is hard for me to conceive foreclosing any member of this group from having their full expression of their views on the final action of any part of any proposal that comes up. It seems to me that it is very poor policy to exercise the previous question in a matter of prime importance that we are taking the primary action of amending. I have sat in a good many deliberative bodies. I have seen the previous question used to stop debate on minor points where you have something at issue which may have not been primary to the functioning of the body. But I seldom have seen the privilege of the previous question abused to stop debate on a final action of a measure that is coming up for either amendment or final passage. It seems to me that debate on these things of importance that are going to carry on for many years should not be limited to the expression of the opinions of a few. We are here for the primary purpose of considering all facets of all of these questions, and it seems to me that moving the previous question forecloses substantial consideration. I think there are men in this body who should not only express their views but to express their views for the record, should be heard in regard to what they have to say pro and con on this question. It is one of the fundamental questions involved as to whether or not we have the appointive system of judges. I might tell you I favor the appointive system of judges in the manner set up here. However, that is beside the point. It seems to me, in determining intent and determining the consensus of this body, the record should be complete. It seems to me that moving the previous question was entirely one of -- not a desire to foreclose the record but to foreclose many men who might have had some valuable comments to put into this record on this point. I just want to say at this point I am going to close my discussion on the previous question, but I just want to say in reading the handbook (the Hawaiian Legislative Handbook) in connection with judges, I want to call your attention to the first paragraph. Independence of the judiciary is a fundamental principle of our American court system. How to achieve that independence is a problem still unsolved. All agree that the first step is to find the right method of selecting judges which will insure a bench free from the.influence and control . of party politics, individuals or pressure groups." Now it seems to me this matter should have a more full discussion before action is taken on this particular amendment.
NORDALE: I would like to echo everything that Mr. Rivers says, and I believe that every paragraph of this constitution.is too important to preclude anyone from expressing his views. I would like to move to rescind the action on the previous question.
SUNDBORG: I second it.
PRESIDENT EGAN: It has been moved and seconded that the action taken to order the previous question be rescinded All those in favor of rescinding the action ordering the previous question will signify by saying "aye", all opposed by saying no . The "ayes" have it and the action has been rescinded. We have before us Mr. McNealy's proposed amendment to Committee Proposal No. 2. Mr. Hurley?
HURLEY: Mr. President, in order that there will not be a feeling on the part of the 55 delegates that this is a courtroom and only attorneys are speaking, I would like to endorse in substance Section 4 of the proposal. I think Section 4 goes to the meat of the whole proposal and as such it will be necessary for us probably to digress into a great many other things that may have been taken care of in later sections. Generally speaking, I think that Mr. McNealy is extremely sincere in his objections to it, but I too have lived under an area where judges were elected to office from anywhere to two or four years. I too have found that those judges have stayed in office from anywhere to 20 to 40 years. I think that is a very substantial argument why a system that is prescribed here should be adopted. In other words, it is not an argument against it. The main argument against the running of judges on a open ticket in a prescribed time against other competition I think has been ably stated by Mr. Ralph Rivers, that it does degenerate, and I have seen it degenerate, into a question of whether a judge is capable of making his own decision on the litigants that are before him and whether he has in mind whether or not they will serve him well at election time. The only other thing I would like to say, besides endorsing in full, is that I would like at a later time, in Section 9 and 10, when we come to it, to offer some slight amendment.
PRESIDENT EGAN: Mr. Davis.
DAVIS: Mr. President, Mr. Hurley has a point here when he says that only the attorneys have been speaking in this matter. I am an attorney but I want to speak on this amendment because the matter is absolutely fundamental. If Mr. McNealy's amendment proposed to Section 4 should be adopted, of course the whole approach to the matter of the selection of the judiciary would be different. We would have to start out and do it all over again. Now that would be all right too. Merely the fact that the Committee has put in a proposal here is certainly not governing on this body. But at this time we are going to have to decide, by this body, as to whether it is the will of the Convention that judges be appointed, or as to whether it is the will of the Convention that judges be elected. After we decide that, one way or the other, then we can go into the other matters as to how they are appointed or as to how they are elected, in either case. Now historically, judges were
always appointed until some time after the adoption of our Federal Constitution, and our Federal Constitution included that procedure in providing that judges are appointed and, in fact, are appointed for life. And, of course, the theory behind appointing judges for life is that they are once appointed, completely independent, and over the years we have seen many times when a President attempted to what we might call, "pack" the Supreme Court. The President has appointed his man or his men with a particular idea in mind, and when those judges were appointed, I think invariably or at least almost all the time, the President in question has been badly disappointed to find that his man followed what he conceived to be the law and not the President's wishes. The lifetime tenure of judges has much to recommend it. On the other hand, the lifetime tenure of judges has the possibility of being abused. Any attorney who has practiced law has seen instances where a judge appointed for a lifetime, after serving for a length of time, becomes completely unresponsive to the will of the people, refuses to change with the times and the times do change. And for that reason, strict appointment with a lifetime tenure, has its disadvantages. With that in mind then, sometime shortly after the adoption of the United States Constitution, many of the states started electing their judges with the idea that the judges would be more responsive to the public will. And the pendulum, as somebody said awhile ago, swung clear over to the other side and we had very nearly all our judges except our Federal judges being elected by the people and for relatively short terms. I grew up in the State of Idaho and we had elective judges. Their terms, even the supreme court judge terms, were only four years. The judge ran every four years and inevitably it got into politics. In order to attempt to remedy that situation, the State of Idaho many years ago adopted a nonpartisan judicial ballot where the judge runs, not as a member of the party, but runs for the office. However, he runs against some other person who aspires to be a judge, and he runs every four years. The result was that the judiciary was not and could not be independent, depending on the whims of the time. depending on the decisions a man might have made, he was or was not retained, or depending on how popular his opponent might be, completely irrespective of qualifications. Now the elective system has much to recommend it, but likewise, it has much against it. In the creation and maintenance of an independent judiciary, and I believe without qualification, I believe I could say that all of us here want an independent judiciary, a judiciary that will not be swayed by the public will at any particular moment, a judiciary that will not be subject to political pressure, a judiciary that will not be subject to pressure from the executive branch of the government. I moved to Alaska some 16 years ago and from that time to this I have been operating under a judiciary which was appointive. However, appointed for a very short term of four years, and I am willing to state flatly in my opinion that system will not work. I have seen instances where judges were
appointed who had no qualifications at all to be judges. They were appointed either by reason of a compromise they were the only ones everyone could get together on -- or for some other reason. In at least one instance, I saw an instance of a judge appointed who was a good judge and who was doing a good job as judge. In the particular case I have in mind the judge made a decision against the United States of America, in my opinion a completely proper decision, but a decision against the United States of America. When he came up for reappointment at the expiration of his four years he was not. reappointed, and a judge was appointed who it was believed would follow what the government wanted, and I know that we do not want that. Now the plan which has been presented here is a compromise between the plan of appointing judges for long terms and a plan for election of judges. In my opinion it has the best features of both. Now Mr. McNealy said, when he was talking, that the fact that a judge may be appointed, may be elected rather, might be an entirely a good judge and that the fact that judges are elected is not any argument that the elected judges are inferior, and I will admit that in a minute, and I also will admit that the fact that judges are appointed does not necessarily guarantee that they are superior judges, but it seems to me that the plan which is set up here gives the best of the two systems with the result that when the procedure is followed we have taken the best means yet devised to appoint and select qualified judges and to keep judges free from outside pressures and to get rid of judges who are not able to properly do their job. I hope that Mr. McNealy's proposed amendment will be defeated.
PRESIDENT EGAN: Mr. Metcalf? If there is no objection, the Convention is at ease for a moment while the stenotypist changes her machine.
PRESIDENT EGAN: The Convention will come to order. Mrs. Sweeney.
SWEENEY: Mr. .Chairman, in view of the fact that they are going to take our desks from us in a few minutes, I would like to move that we recess until 1:30 this afternoon and that Mr. Metcalf be the first speaker when we resume discussion.
PRESIDENT EGAN: Mrs. Sweeney asks unanimous consent that owing to the fact that the University people will have to get these tables out of here in a few minutes, that the Convention stand at recess until 1:30 p.m. and that Mr. Metcalf, who was recognized, have the floor at that time. Is there objection? Hearing no objection the Convention stands at recess until 1:30 p.m.