ALASKA CONSTITUTIONAL CONVENTION

December 12, 1955

THIRTY-FIFTH DAY

PRESIDENT EGAN: The Convention will come to order. Reverend Armstrong, will you give our daily invocation.

REVEREND ARMSTRONG: Our Father, we come to Thee asking for Thy divine help and guidance. Create within us clean hearts, renew within us right spirits, cause us to devote all of our energy to the building of a constitution that will insure right, peace, and harmony within the State of Alaska. Teach us humbly to rely upon Thee for wisdom in each step of our way. For this we ask in Jesus' name. Amen.

PRESIDENT EGAN: The Chief Clerk will call the roll.

(The Chief Clerk called the roll.)

CHIEF CLERK: Two absent.

PRESIDENT EGAN: A quorum is present. The Convention will proceed with the regular order of business. Mr. Knight?

KNIGHT: Mr. President, after reading the journal for the 31st day I would like to make the following corrections

PRESIDENT EGAN: Mr. Knight, reporting for the special Committee to read the journal, would like to make the following corrections for the journal for the 31st day.

KNIGHT: In the paragraph beginning "A letter from", add the word "Mr." on page 1. On page 4, paragraph beginning with "Mr. McLaughlin" on the second line, delete the word "from" and add thereto the word "of". Same page, beginning with the paragraph

"After recess". on the third line, add "S.L.A. 1955" after "46".

On page 5, paragraph beginning with "Mr. Riley", the word "rules" should be changed to "ruled". Those are all the corrections, Mr. President. I ask unanimous consent that the journal be approved as read.

HERMANN: I object for a moment, Mr. President. On page 3, in the second paragraph, as I recall the minutes, that should be "both dates inclusive". The word "inclusive" has been left out after "dates".

CHIEF CLERK: No, that was in, Mrs. Hermann, and the words that were added were "both dates". I don't have it right here.

PRESIDENT EGAN: Then on the original resolution the word "inclusive" was there but they added the words, "both dates"?

HERMANN: Then on page 4, the second paragraph, second line says "Paragraph 3 in the resolve be amended. Should that not be resolution"?

PRESIDENT EGAN: That would indicate more or less the title.

CHIEF CLERK: It was the resolve clause that was amended. That is the only way you can designate what was amended, by looking back.

PRESIDENT EGAN: Is there objection to Mr. Knight's request? Mr. Knight asks unanimous consent that the journal for the 31st Convention day, with the proposed amendments offered by the special Committee to read the journal, be approved by the Convention. Is there objection? Hearing no objection it is so ordered. Are there any petitions, memorials, or communications from outside the Convention?

CHIEF CLERK: A letter from the Republican Women's Club of Anchorage, opposing the Tennessee Plan.

PRESIDENT EGAN: If there is no objection the letter will be referred to the Committee on Ordinances, No. IV.

CHIEF CLERK: A letter from Walter J. Hickel. (Clerk read letter inviting the delegates to attend the opening of the Fairbanks Traveler's Inn, December 17 at 1:30 p.m.)

PRESIDENT EGAN: The delegates will attempt to remember that date and the letter will be filed. Are there other communications?

CHIEF CLERK: I have none.

PRESIDENT EGAN: Are there reports of standing committees? Mr. Collins?

COLLINS: Mr. President, Committee on Amendment, No. XIII, submits Committee Report No. 3 for first reading.

PRESIDENT EGAN: The Chief Clerk will proceed with the first reading of Proposal No. 3.

CHIEF CLERK: "Committee Proposal No. 3, introduced by the Committee on Direct Legislation, Amendment and Revision, INITIATIVE, REFERENDUM AND RECALL, AMENDMENT AND REVISION."

PRESIDENT EGAN: The proposal is referred to the Rules Committee for placement on the calendar. Are there other reports of standing committees? If not, are there reports of special committees or select committees? Are there any proposals to be introduced at this time? Are there any motions or resolutions? Mr. Marston?

MARSTON: Mr. President, I think this comes in here. It is pertaining to the arrangements for hearing during recess. I have had communications from my particular group in Spenard and they do not feel that it is necessary for me to call a meeting --

PRESIDENT EGAN: Is there objection to taking up this question at this time? If not, proceed Mr. Marston.

MARSTON: They do not think it necessary for me to call a meeting with them. They have admonished this institution to forget sectionalism and not let it creep in, and they expect to find this constitution, yet written by mankind, one that is acceptable to the people as a whole. They are watching these deliberations very carefully, and they want a constitution built for the good of all, with favoritism toward none. That is the position they took on it and I am carrying that message to you. That comes from my group in Spenard. I will not hold meetings there and therefore I will not be entitled to any compensation for travel or per diem or compensation while I am away. I am so notifying the Finance Committee of that now.

PRESIDENT EGAN: The Chief Clerk will make a note of that fact that he will not accept his per diem or any other compensation during the recess. Are there any motions or resolutions? Is there any unfinished business? Under unfinished business the Chair might state that with regard to the proposed Committee on Engrossment and Enrollment, the Chair desires to appoint Mrs. Sweeney, Mr. Ralph Rivers and Mr. Yule Kilcher to serve as the Committee on Engrossment and Enrollment. Is there any other unfinished business to come before the Convention? Mr. Coghill?

COGHILL: I don't know whether it is in order at this time but Saturday we discussed the possibility of seeing the films. one from the Alaska Visitor's Association and one from the Corps of Engineers. We have arranged for that at the pleasure of the Convention. It will be held in the Mines Auditorium at 7 p.m. this evening. I hope that does not conflict with any committee meetings or hearings and if there is a majority of the Convention that wants to see these films, it will go on as scheduled. However, if the majority of the Convention feels they don't want them, there is no sense in bothering the Mines organization. I think we should have a show of hands on how many want to see this particular two-feature film.

PRESIDENT EGAN: Mrs. Hermann.

HERMANN: Mr. President, before we have a show of hands, I would like to suggest that since we have a good deal of business on hand and that we work straight through to 6 o'clock, eat dinner in the cafeteria and go from there to see the film.

That is just a suggestion but I think we would have more who would be willing to stay over and see the film that way than we would have if they had to come back.

HINCKEL: Along the same lines, may I suggest we work to 7 o'clock, go to the show, and eat afterwards.

PRESIDENT EGAN: Mr. Walsh.

WALSH: Mr. President, relative to the discussion on films, I wish to be permitted to read a very brief comment, one from Mr. Bartlett, also one from Dr. Patty and one from Governor Heintzleman, very brief. I will quote just the meat of it. "These pictures are truly authentic. They depict the real Alaska of the far North. The photography is simply beautiful. I hope the pictures may be widely shown to promote a better understanding of the real Arctic." Signed E. L. Bartlett, Alaska Delegate to United States Congress. And from Dr. Patty, "The photography and narrations are excellent. It was a relief to find the restraint and factual way in which you presented your subjects. These will be excellent for showing in schools." Signed Dr. Patty, President, University of Alaska. And from Governor Heintzleman, "I have viewed many pictures of conditions in Northern Alaska and the life of the Eskimos there, but I was never more satisfied with any presentation than with these. You have caught the spirit of the North country." Signed B. Frank Heintzleman, Governor of Alaska. I thought it would be well for the members to know that these have been endorsed by those men whom I have just read.

PRESIDENT EGAN: What seems to be the desire of the Chairman of the Committee on Administration? Mr. McNees?

MCNEES: In line with what we have heard here this morning, I would like to move that we stay organized for a group until 6 o'clock tonight and that the group as a whole see these two pictures at 7 o'clock.

PRESIDENT EGAN: Mr. Smith.

SMITH: Along this same line, I would like to ask the consent to be excused at 3:30 this afternoon on the grounds that I have some very urgent personal business to attend to before 5 o'clock.

PRESIDENT EGAN: If there is no objection, Mr. Smith, you may be excused at 3:30 this afternoon. Mr. Nerland?

NERLAND: Point of information? Is it contemplated that this session will last all day today and if we attend this showing this evening, there will be no committee meetings at all today?

PRESIDENT EGAN: That would be the assumption if this --

NERLAND: It occurs to me our time is drawing short before we recess for the hearings and I know the Finance Committee had planned a meeting for this evening, assuming that we would not have time during the day, and perhaps there are going to be other committees pressed too, to get their committee proposals in before our recess time, which I consider quite essential.

MCNEES: By that motion I did not mean that we should stay in plenary session, of course, we would stay about for the conduct of Convention business.

PRESIDENT EGAN: Mr. McNees, do you think it might be well if, as Mr. Coghill first suggested, before we put any motion to ask those members who feel they will be present at this film showing to raise their hands?

MCNEES: I will withhold the motion for the moment.

PRESIDENT EGAN: Will those delegates who feel they will be present to see the showing of the films, please raise their hands. Mr. Barr?

BARR: Before I vote on that I would like to know for sure if I have a committee meeting tonight for this reason. I would not want to come back out here especially for the show, but if I am going to have a committee meeting afterwards, I will come out early and take in the show. I wonder how many committee meetings are planned.

PRESIDENT EGAN: Are there other committees that plan meetings for tonight? Mr. Victor Rivers?

V. RIVERS: The Executive Committee will have a meeting at 3 o'clock if we can all get together. I think that does not conflict with most of our members.

PRESIDENT EGAN: Mr. Smith.

SMITH: Mr. President, the Resources Committee will also hold a meeting if time is available. We will hold it on schedule if the plenary session allows. Otherwise, any time that it is possible to hold one.

PRESIDENT EGAN: The Resources Committee will meet as soon as possible, on schedule if the plenary session allows. Mr. Rosswog.

ROSSWOG: Mr. Chairman, your Local Government Committee would like to have a meeting sometime this afternoon, at its regular time or at sometime at least.

AWES: The Bill of Rights Committee would also like to meet, if possible.

PRESIDENT EGAN: The Bill of Rights Committee would like to meet. Mrs. Hermann?

HERMANN: I think if we break up in committee meetings, it will be the usual rule that those who do not have committee meetings will go back to town. I can't vote on this until I know whether I am going to have to come back out here or whether I am going to stay. I would like to see the pictures, but whether or not I can come back out, I don't know. Now, I think my original suggestion was that we continue in plenary session until time to adjourn today and then go ahead with the hearing and after that hold committee meetings if they want to, but I think I would have to know which we are going to do before I could vote.

PRESIDENT EGAN: Perhaps then you would rather find out how long we are going to be here before you put the question as to whether you want to stay and see the film. Mr. Coghill?

COGHILL: Mr. Chairman, it might be well to bring up the thought that possibly we could adjourn our plenary session this morning early and adjourn until 3 o'clock this afternoon and take up plenary work until this afternoon, giving a chance for most of the committees a chance to get together. It is just a suggestion if that would clear up the point of whether you're going to be here or not when the showing convenes.

PRESIDENT EGAN: The Chair would like to state that we should remember we have a committee proposal to work on and it is very hard to tell, subject to the wishes of the body, just when we could recess. Mr. Victor Rivers.

V.RlVERS: Mr. Chairman, in line with the motion, I think it is appropriate to say that in my opinion and a number of others that I have talked to, we should start dividing work up into regular orders of business, both plenary and committee work, we have gotten through the bulk of the work which has been practically all committee work and it was my intention and thought that I would move for a recess about 12:30 today, even though we had an order of business, and ask for recess until 9 o'clock tomorrow morning, and in that way we would then have our afternoon free for committee meetings. If we are going to have something on our calendar from now on, it seems we should divide and give an equal portion of our time to the two different phases that we are facing, the plenary work and committee work. It was my thought that I would at 12:30 ask for an adjournment until 9 o'clock tomorrow morning.

PRESIDENT EGAN: Mrs. Hermann.

HERMANN: I don't agree that we can divide the time equally between committees and plenary sessions. I think the committees have had their time, and if they are not through, they should find extra time and not interfere with work on the floor.

PRESIDENT EGAN: Mr. McNees, what was the subject matter of your motion? Would you state your motion again.

MCNEES: The motion originally was that we continue to conduct whatever business in a Convention way that we had before us whether plenary sessions or committee meetings, but hold the entire group here through the dinner hour for the showing at 7 o'clock. My understanding was that the showing of this film will not take too long.

COGHILL: No, it is about an hour in length -- the Alaska Visitors and then we have two short thirty-minute films that can be shown but the Alaska Visitors film this is the last night we can possibly obtain the Alaska Visitors film. It is leaving tomorrow.

PRESIDENT EGAN: The Chair would question whether a motion could bind all the members to be sure and stay here to see the film.

MCNEES: I will withdraw the motion.

WALSH: Again I might state I have seen those films, a great part of them, and I think they are very interesting and important. I don't mean to say that we should leave any regular order of business for it, but if the members could arrange so that we could see those at 7 o'clock and for one hour I think they are very important. I realize too, that we have before us business.since Saturday, the Judiciary recommended proposal, and I think that time could be given to the continuation of that today. It probably would make some progress. That is a very important and in my opinion, an excellent proposal, and I would like to see the Convention put in some time on that. That is my opinion.

PRESIDENT EGAN: If there is no objection then the Chair will just state that it is planned to have the films at 7 o'clock this evening in the Mines Building, and all those delegates who so desire can attend the showing of those films at that time. Is there any other business to come before the Convention? If not, we will proceed with the second reading of the Committee Proposal No. 2. We have before us an amendment to a motion by Mr. Cooper, as the Chair recalls. Mr. Hinckel?

HINCKEL: I am out of order then because I have withdrawn a motion and I thought I was in order by presenting it now.

PRESIDENT EGAN: Mr. Hinckel, had you withdrawn a motion with the understanding that you would be able to present it later,

but was it not that this particular thing was before us at that time the reason you held your motion? Was that with relation to this committee proposal?

HINCKEL: I am out of order. I will wait.

PRESIDENT EGAN: Will the Chief Clerk please read the proposed amendment to the motion. Mr. Cooper?

COOPER: Since Friday I met with the Judiciary Committee and during the meeting the conversation was very enlightening, and all but, in effect the Committee has taken a pat stand on their Section No. 7, and I would like to withdraw my original motion with the consent of my second, and in effect the only amendment that I could offer at this time would be that after the word "nomination" the last word in Section 7 would be "and possess such additional qualifications as the legislature may prescribe." I don't really believe my amendment now would have any meat whatsoever. As I understand, something not specifically spoken of in the constitution can be accomplished at a later date, such as "the legislature requiring additional qualifications." Am I correct?

PRESIDENT EGAN: Mr. Cooper, now your present amendment to the motion that you originally introduced would set up or give this power to the advisory council, isn't that right, or is that correct?

COOPER: I withdrew that. I ask with the consent of my second.

PRESIDENT EGAN: You would like to withdraw the amendment to your original motion?

COOPER: I would have to take it in that order.

PRESIDENT EGAN: Is there objection to Mr. Cooper's withdrawing the amendment to his original motion? If not, with the consent of the second, the amendment to the original motion by Mr. Cooper is ordered withdrawn.

COOPER: Now, Mr. President, I would like to withdraw the original motion.

PRESIDENT EGAN: Mr. Cooper asks unanimous consent that he be allowed to withdraw his original motion which would strike, after the word "state" on line 2, page 3 --

CHIEF CLERK: No, it was a substitution, it was to strike Section 7 and to put in a new Section 7.

COOPER: The original motion was to strike the entire Section 7 and insert the amendment I had written.

PRESIDENT EGAN: Is there objection to Mr. Cooper's withdrawing that motion? Hearing no objection the motion is ordered withdrawn.

COOPER: Mr. President, I do want it made clear to me that if the constitution does not speak on the subject that that subject then is authorized in essence.

PRESIDENT EGAN: Mr. Cooper, if there is no objection the Chair will declare a one-minute recess and perhaps the Rules Committee or other members can answer that exactly. The Convention is at recess.

RECESS

PRESIDENT EGAN: The Convention will come to order. Mr. Cooper.

COOPER: Having withdrawn my other amendment, I wish at this time to offer an amendment which is my honest feeling that I was trying to accomplish last Friday. I would like to present this amendment and ask for unanimous consent.

PRESIDENT EGAN: Mr. Cooper, do you have your amendment prepared to offer to the Chief Clerk at this time?

COOPER: Yes, I do.

PRESIDENT EGAN: The Chair would like to ask that all delegates please speak up as the gallery is pretty well filled and it is very hard for the delegates to be heard in the gallery.

BUCKALEW: Mr. President, who is in the gallery?

PRESIDENT EGAN: Mr. Buckalew, the Chair understands that there are some 50 students of the senior class of the Fairbanks High School along with several of the faculty, and we are very happy to have you with us this morning. The Chief Clerk will read the amendment.

CHIEF CLERK: "Page 3. line 2, after the word 'state' delete the rest of the section and substitute the following: 'and possess such other qualifications as may be prescribed by law.'"

PRESIDENT EGAN: What is the pleasure of the delegates? Mr. Cooper?

COOPER: I ask unanimous consent to that amendment.

PRESIDENT EGAN: Mr. Cooper asks unanimous consent that the proposed amendment be adopted.

JOHNSON: I object.

PRESIDENT EGAN: Objection is heard.

WHITE: I second the motion.

PRESIDENT EGAN: Mr. White seconds the motion. The motion is open for discussion. Mr. Ralph Rivers?

R. RIVERS: Mr. President, I helped George draft this clause for the purpose of achieving what he had in mind. Many of the members of the Rules Committee and of the Judiciary met with the Board of Governors of the Bar Association Saturday noon, and the members of the Board of Governors had expressed the thought that we could very well dispense with that residence requirement and that membership of the Alaska Bar for five whole years stating that additional flexibility was better, and the Board of Governors did not naturally, would not, object to adding some qualifications by the legislature. It is my thought though that if you are going to lay down an eligibility qualification that the legislature may not change that unless we give the legislature authority to do so. Now the effect of the present proposed amendment would be that to be eligible to be a justice of the supreme court or a judge of the superior court you must be a member of the Alaska Bar and possess such other qualifications as the legislature may prescribe. That is the effect of the present amendment, and to get this thing on the way I will trust the legislature as to whether they want to put three years or five years or any other period or else leave it the way it is, so 1 am going to support Mr. Cooper's amendment.

PRESIDENT EGAN: Is there other discussion? Mr. McNees?

MCNEES: Mr. President, I rise to speak in favor of the amendment, feeling that the constitution has no right to restrict, and therefore I would vote in favor of the amendment.

PRESIDENT EGAN: Is there further discussion?

BARR: I spoke on this before. I can only repeat myself, but I would like to say that the principal aim of the constitution is to protect the rights of the people, and the attorneys here have all said that a justice or a judge should have a wide experience in law, not just have had experience as a prosecutor or a corporation attorney or something of that sort, but have wide experience. The people of Alaska who might be judged by that court also will have a right to demand that he have a wide experience and not only in the law but be thoroughly familiar with our conditions in Alaska, since they are rather peculiar to those of the states. It is the duty of we here to see that it is written in the constitution because it is the constitution's purpose to preserve the rights of the

people, and this would do it if there was a five-year residence requirement in the constitution.

PRESIDENT EGAN: Mr. Kilcher.

KILCHER: Mr. President, I generally would agree with Mr. Barr's ideas about protecting the rights of the people. Requirements might seem in order if we did not have this new situation where a board consisting of a majority of lawyers that are also interested in the people's rights. They are appointed by people who are interested in the people's rights. Therefore, it has practically full powers to nominate the right kind of people, and furthermore we have the legislature, who is mainly interested in protecting the people's rights to establish further qualifications if they choose, and I think it is satisfactory to protect the people's rights and I am in favor of Mr. Cooper's amendment.

PRESIDENT EGAN: Mr. Cooper.

COOPER: Mr. President, I have to further explain myself again, that that is exactly, that is the protection of the people's rights was what I was trying to accomplish and what I have accomplished by this amendment. The people have no choice originally in the appointment or in the nomination for judges, but through the people's representatives, their legislators, they will have the right to insist on additional qualifications if the people so desire. That was exactly the entire essence of my amendment, in that the qualifications can be increased if the people so desire.

MARSTON: Mr. President, may I have the Cooper amendment read?

PRESIDENT EGAN: Would the Chief Clerk please read the amendment by Mr. Cooper.

CHIEF CLERK: "Page 3, line 2, after the word 'state' delete the rest of the section and substitute the following: 'and possess such other qualifications as may be prescribed by law.'"

MARSTON: I vote for the Cooper resolution.

PRESIDENT EGAN: Mr. Johnson.

JOHNSON: Mr. President, I would like to call attention to the fact that at the last plenary session when this section was before us the precise question was also considered and voted on twice. In other words, the striking of everything in Section 7 after the word "state" in line 2 on page 3, that proposal came before us twice at the last plenary session and was rejected by the Convention. The only new part of this proposal is the addition of the wording after the word "state" which

is, "and possess such other qualifications as the legislature may prescribe. Now that part of the amendment or proposed amendment is new. I contend that the first part of the amendment has already been acted on twice and is not proper and should be rejected on that basis. However, I would like to point out that Saturday the Judicial Committee had a meeting at which Mr. Cooper attended, and at that meeting Mr. Cooper gave us the understanding and the impression that all he wanted to do was to add the phraseology, and possess such additional qualifications as the legislature may prescribe" to the wording already contained in Section 7, without any deletions, except.for deleting the period and inserting a semicolon after the word "nomination". That was the understanding of the Judiciary Committee and so far as I know the Committee approved of that particular change. But now, presumably over the weekend, he has changed his mind and now wants to strike out all of the words which I believe have already been passed on twice and I think this five-year requirement certainly is not an unreasonable safeguard to put in the article, and it has been passed on, certainly unanimously, by the entire Judiciary Committee, and I am not aware that the Board of Governors of the Alaska Bar Association are necessarily opposed to it, as Mr. Ralph Rivers indicated, because I attended the meeting yesterday afternoon of the Judiciary Committee, and the Board of Governors of the Alaska Bar Association, and so far as I know nothing was said at that time to indicate that the Bar Association wanted this five-year requirement stricken from the constitution. They did raise questions about whether or not there would be available manpower. However, they felt that the authority given to the judicial council was broad enough in the entire article to give or to provide for a good and independent judiciary when the time comes. I believe that the amendment is out of order and I certainly am opposed to it.

PRESIDENT EGAN: The Chair would have to state at this point that in the opinion of the Chair the amendment is in order. There is something new that entirely changes the original idea, so the Chair would have to hold that the amendment is in order.

R. RIVERS: I was going to ask for the privilege of the floor for just a moment. It was to the effect that Mr. Clasby, Secretary of the Board of Governors, said that they approved this article as a whole but were going to make some minor suggestions, and one of the suggestions that they were going to make was that we might modify this five-year business. Then he went on to say," We're short of manpower and maybe we can get a good judge elsewhere." Now they did not say to what extent they might want it modified, but they distinctly left the impression we did not need that five-year residence in there. I don't think Mr. Johnson was trying to impair my integrity. Perhaps he and I just did not hear it the same way.

PRESIDENT EGAN: Mr. Taylor?

TAYLOR: I will have to take issue with Mr. Rivers on that. We had a meeting of the Judiciary Committee with the Board of Governors of the Alaska Bar Association. I don't know whether Mr. Rivers was there last night, and they have withdrawn all objections to the bill. There was only one man who voiced objection. That was Mr. Clasby, the Secretary, and that was personal objection, not the Board of Governors. They said to leave it as it is, and as far as the manpower.condition might exist of getting six or nine judges, if they had to pick them all at one time, that it should be better to leave this bill exactly the way it is now, except at the end, after the word "nomination" , then "possess such other qualifications as the legislature may prescribe or which may be provided by law." So there is nothing from the Board of Governors here but what they are in favor of it. They spoke very highly of it yesterday. They said to leave it go the way it is. You don't see them here objecting to it, do you? That was the result of the meeting yesterday.

R. RIVERS: I refer to a luncheon meeting on Saturday. If they had the following meeting I must have overlooked it, but I do refer to a luncheon meeting on Saturday.

TAYLOR: They raised some very minor objections, but the other members said those were taken care of in the bill itself. I don't think they had time to go over it fully.

PRESIDENT EGAN: Mr. McLaughlin.

MCLAUGHLIN: Mr. Chairman, to clarify a very minor tempest in a teapot, Mr. Johnson, for his information Mr. Cooper asked me this morning whether or not he in substance were bound by his conversations with the Judiciary Committee on Saturday, and I assured him, Mr. Johnson, that if he felt in good conscience that he had in substance agreed to something that he now regretted, I felt sure the Judiciary Committee did not feel it was a commitment of sorts. It was on my assurance, Mr. Johnson, that he changed his mind and submitted a new amendment. That is in justification of Mr. Cooper's attitude.

PRESIDENT EGAN: Mr. Hellenthal.

HELLENTHAL: May I ask Mr. Taylor a question. Mr. Taylor, if the proposed amendment is defeated, do you plan to propose an amendment adding the words, "and subject to such further eligibility qualifications as the legislature may prescribe", following the present Section 7?

TAYLOR: Yes. If this motion carries, which I hope it does not, I would offer that amendment.

HELLENTHAL: If it is defeated, what do you plan to do, offer this amendment?

TAYLOR: No, I would not offer that amendment for the reason that I am on this Committee, and I bound myself to go for this bill as it is. It might be if the amendment is offered I might support it, but I am not going to offer any amendment to change the nature.

PRESIDENT EGAN: Mr. Gray.

GRAY: I am not speaking from a lawyer's standpoint (I'll let them take care of that but just from the protection of the average citizen, I believe in the supreme court justice much like we have the governor. If we have a five-year residence requirement, it is no requirement to a position of that statute in the State of Alaska. By five years the people will know what they are getting for supreme court judges. Just like by five years.residence, we will know what we will be getting for governor. I believe in the five-year requirement. It gives the people a chance to know who they are receiving for the top offices of the state. For that reason I am going to go along with the five-year residence requirement.

PRESIDENT EGAN: Mr. Metcalf.

METCALF: I oppose Mr. Cooper's amendment, that part of it which abolishes the five-year residence requirement. I have seen many times in the small towns where newcomers come to town with a good gift of gab and a great big smile and they win a lot of friends immediately and a few months afterwards they have just as many enemies. Therefore, I feel that we should have the entire five-year residence requirement so that we really know what people are under stress and under pressure. Let me ask you also, remind the delegates that this constitution for the great State of Missouri, which was revised and adopted in 1945, the residence requirement was said last week were nine years in addition to being 15 years a citizen of the United States. If it is good enough for the State of Missouri and other states that have adopted recent constitutions, it certainly should be good enough for us. Another matter I want to bring up with reference to the late Judge Dimond. What were the reasons for him being loved by every one, it was the fact that he was a long-time resident here in the Territory. He worked with the miners out in the hills in the winter time and understood the common man's problems. He was not only a humane judge but learned in the law, and I wish you people would remember that, that residence means something, and therefore I oppose Mr. Cooper's motion for that reason.

PRESIDENT EGAN: Mr. McNealy.

MCNEALY: Mr. President, the last time this was discussed on

the floor I was in substance probably opposed to the amendment

offered by Mr. Cooper or an amendment of this type. However,

in talking with other attorneys over the weekend who are not

members of the Judiciary Committee here, it has changed my

thinking, and I am wholeheartedly in favor of the amendment

as offered by Mr. Cooper and for several reasons. The bill,

as I see it in going all the way through, is set up so it

leaves no possible control by the legislature whatsoever. It

is entirely a piece of legislation in itself. It purports

to have a closed corporation, so to speak, in my opinion.

Now if the judiciary council or the Judiciary Committee believes so strongly in the qualifications of the judiciary

council, as it is going to be set up, then there should be no

worry on their part or the part of anyone in this Convention

of having this amendment adopted, because this supreme judicial council will without question appoint the right man, and

if they feel that he should have five years.residence in the

Territory and five-years practice in the Territory, surely

this council, also set up by the Judiciary Committee, is not

going to go off the track. If they are, there is something

wrong with the judicial council system. Now conditions may

change over a course of years, or if the matter is left to

the legislature they may see a necessity for rather than five

years, of requiring ten years here. I think it certainly

should, some parts of this bill at least, should be left to

the discretion of the legislature. As an attorney I probably

should be in favor of a closed shop corporation, but for the

reasons I have stated, I believe no harm can be done, in fact

I believe the bill will be greatly improved, and certainly

it would be in my opinion, to adopt the amendment as offered

by Mr. Cooper.

PRESIDENT EGAN: Mrs. Hermann.

HERMANN: Mr. President, I voted against the amendment to delete the five-year residence the other day. I am going to vote

for Mr. Cooper's amendment because something new which has

been added, in my mind, strengthens it to the point where I

can support it. I think one of the fundamental things that

this body is going to have to do, whether they like it or

not, is to develop faith and trust in the future legislatures

of Alaska. Now I have on occasion criticized the legislature,

and I reserve the right to do it again, but nevertheless, it is

a very important instrumentality of government. And it is

the only instrumentality of government that is sufficiently

flexible to correct conditions that may change with the passing years, and for one I am not insisting that we have five

years of residence if the amendment is in that will permit

the legislature to correct that if the need for it ever arises.

I am going to support Mr. Cooper's amendment.

PRESIDENT EGAN: Mr. Davis.

DAVIS: Mr. President, may I ask the Clerk to read the portion which is to be added under Mr. Cooper's amendment?

CHIEF CLERK: "and possess such other qualifications as may be prescribed by law."

DAVIS: May I direct a question to Mr. Cooper? Mr. Cooper, I would ask as to whether you would make any objection to substituting the word "additional" for the word "other"?

COOPER: I have no objection.

DAVIS: I would like to offer an amendment to Mr. Cooper's proposed amendment to substitute the word "additional" for the word "other", and I ask unanimous consent.

PRESIDENT EGAN: Unanimous consent is asked that the word "additional" be substituted for the word "other" in Mr. Cooper's proposed amendment. Is there objection? Hearing no objection the change is ordered made. Now we have the original amendment. Mr. Stewart?

STEWART: As a nonlawyer, I would like to say that I have been convinced now that with the legislature having the say as to the qualifications of the Chief Justice, I am going to support the amendment.

PRESIDENT EGAN: Mr. Victor Rivers.

V. RIVERS: Mr. Chairman, I am going to restate my position of the other day that I think that every man in high office in the Territory, whether it be on the judiciary or the executive, wherever he may be, where he is establishing policy and handling the affairs of the Alaskans, should have a close acquaintance with Alaska. I believe that the requirement of the registration should stay in. I can also see that unless you have, as we come into the new status of statehood, there is going to be a transitory period. In that transitory period, under this amendment, the only requirement you will have for your chief justice on down will be admission to the Alaska bar. Now it's nice to say that the judicial council will make no mistakes but I am sure that there is nobody that has ever been assembled that won't make mistakes. I think it is a necessary safeguard that we leave in the five years of practice and the five years of residence. I don't agree with this idea of opening the gates wide open. As far as any closed shop goes, it is not a closed shop to say that a man shall not only have an acquaintance with the law in his business but he shall also have an acquaintance with the people and the country he is doing business with and doing business for. It seems to me utterly ridiculous to pass this on to the legislature in this particular form, in this particular instance. I notice that practically none of the other states have done it. If they

had any good reason, I think they had. We have also a good reason to retain the five years, because I am sure as I stand here, in the transitory provisions the legislature will be piled high with work. They are not going to take up the minor qualifications of judges at that time. You are going to get a chief justice, and all the first appointments to the court will come in with the only requirement being they will be admitted to the bar and to my way of thinking that is not adequate.

PRESIDENT EGAN: Mr. Coghill?

COGHILL: Speaking for the first time on this proposal and being a nonattorney, I go along with Mr. Rivers on his statement and would like to bring that further in opposing this. You are in fact placing the responsibility on the legislature to encroach upon a division of government, which is the judicial. Also, you will note that in past years in the legislature, if you are going to throw the qualifications of judges into the legislative hands that you are going to encroach upon the people being willing to take responsibility to that effect, the same way as has been brought about by board members in our Territorial form of government. Therefore, I am opposed to the amendment.

PRESIDENT EGAN: Mr. Rosswog.

ROSSWOG: Mr. Chairman, I would like to speak in favor of this amendment. I feel that the requirements should be left flexible and that we will have protection in the judicial council. I have been a long resident of the Territory and I have grown to look at it from the attitude of residence requirements from our officials, but I do think in this case I would be in favor of the amendment.

PRESIDENT EGAN: Mr. Robertson:

ROBERTSON: Mr. President, I am obliged to oppose this proposed

amendment. In my opinion this is not setting up a closed corporation. It is a provision particularly for the protection of the people of Alaska because they get a good judiciary. I would have no objection to adding to the present Section 7, the last clause of Mr. Cooper's proposed amendment, "and possess such other qualifications as may be prescribed by law." But I think we ought to have the minimum limitations to start out with, and furthermore,.I think we have the manpower among the men who are practicing attorneys in Alaska to obtain the necessary judgeships and justices as we enter statehood, and I hope the amendment is voted down.

PRESIDENT EGAN: Mr. Hilscher.

HILSCHER: Mr. President, I wish to speak in favor of the

amendment for this reason. A statement just recently made on the floor here stated that there were sufficient qualified men in the legal profession in the Territory at the present time to cover the jobs that would be open when we become a state. Now that is just a polite way of inferring possibly that a certain amount of protection should be given to the men who are in the Territory in the legal profession. The point I wish to make is this there are going to be so many small items which will come up before this final document is completed, Mr. President, that the antistatehood crowd will be able to go to the members of Congress and say, "They are building a fence around themselves." They will have 25 or 30 small items which from the standpoint of publicity and personal opinion, they can sway members of Congress and say, "Who do those Alaskans think they are, building a fence around themselves and they want to get into the Union of the United States." We have an end product to sell. We had better make that pretty liberal if we.are going to get into the Union.

PRESIDENT EGAN: Mr. Hellenthal.

HELLENTHAL: Mr. Robertson, if this amendment is defeated, will you propose an amendment adding the words, "and subject to such further qualifications as the legislature may prescribe" to the present Section 7?

BUCKALEW: Point of order. I think it is out of order to ask a man if he is going to offer an amendment if this passes, and ask somebody else if that is

PRESIDENT EGAN: The Chair will. have to hold that your point of order is well taken in that it doesn't have anything to do with this amendment before us right now.

HELLENTHAL: Mr. Chairman, if I felt that the members of the Judiciary Committee would offer the amendment that I speak of, to the present Section 7, I would then vote against Mr. Cooper's amendment. However, until those assurances are forthcoming, I shall vote for Mr. Cooper's amendment. Now, Mr. Coghill made a mention that the Cooper amendment, he said would encroach upon the prerogatives of the judiciary. Well, I cannot see that in the light of Section 8. The Judiciary Committee in Section 8, as far as judges of other courts are concerned, is perfectly willing to leave their qualifications to the legislature. So if Mr. Coghill is consistent, Section 8 would have to be amended and rewritten completely. So I see nothing wrong in allowing the legislature to prescribe the qualifications. However, I do think it would be preferable if the residence requirement were left in as a minimum and then the legislature would take up from there. But until I have assurances from the Judiciary Committee I shall support this amendment.

PRESIDENT EGAN: Mr. McCutcheon.

MCCUTCHEON: Mr. President, I feel impelled to support Mr. Robertson and Mr. Rivers in speaking against the proposed amendment. 1, too, would go along with the idea that after the word "nominations" if we added in that the additional qualifications by the legislature could be set up. I feel the little fence building by Alaskans is not a bad idea, since primarily we are using airplanes these days and are able to get over fences. Also, I believe the proponents of this thing are presupposing that we are going to have statehood in the next 15 minutes. I like to view that idea kindly but I am afraid it is not going to be the case. There are a good many qualified attorneys, young attorneys here in Alaska who will have had more probably than ample residence requirements to be joining in such a thing as this by the time we get to be a state and we shouldn't overlook that fact. I am compelled to vote against this proposed amendment, but if it were later on added in after the word "nominations ", I would be inclined to support it.

PRESIDENT EGAN: Mr. Johnson.

JOHNSON: Mr. President, first of all I would like to say that if I in any way impuned Mr. Ralph Rivers' integrity, I apologize. I had no such intention. In answer to what Mr. Hilscher has said about going to Congress with a.constitution that provides little fences, I would like to point out that the constitution of the Commonwealth of Puerto Rico, which has already been approved by the Congress, makes the residence requirement for judges ten years, and they shall have been admitted to practice law in Puerto Rico at least ten years prior to this appointment and shall have resided in Puerto Rico at least five years immediately prior thereto. " That was the type of fence that.was built in Puerto Rico and which was subsequently approved by the Congress. I don't see that that is any argument against the amendment. I go along with Mr. Robertson, Mr. McCutcheon and Mr. Victor Rivers in their idea that the language sought to be added after striking out the five-year requirement, could well be added to the section as it is now, and I would have no objection to that and I would be willing to offer such an amendment if this proposal is defeated.

PRESIDENT EGAN: Mr. Kilcher.

KILCHER: Mr. President, I would like to make only the statement that the comparison.of Alaska with Puerto Rico is a most unhappy one. For one thing Puerto Rico is a Commonwealth. If some of them had their way they would be entirely independent. They have a language of their own, they are feeling like a minority nationality, they are an overpopulated small island. A lot of them are leaving their country, entirely the reverse situation of Alaska. We are a country that is vast and we are

absorbing population yet, so from this point of view I think that we could not possibly choose an unlikelier comparison than the one with Puerto Rico. Again I reiterate that I still think that the amendment should be supported.

UNIDENTIFIED DELEGATE: Question.

PRESIDENT EGAN: Mr. Barr.

BARR: Mr. President, it is very true that Puerto Rico is far different than Alaska, but Congress's feeling on this subject is probably the same in both cases, and I would like to point out here that in the debate on the floor we have been for and against two different things in this amendment. One is the residence requirement and the other is whether or not the legislature should have some say in this matter of appointment. Now I believe that we should leave the residence requirement in, as I have stated before. Another reason that I have not stated is that since we have our choice of appointing these judges or electing them, and we have chosen not to elect them for very good reasons, it seems that we should at least then give the people a chance to know who is going to be the judge. If he has been residing here for five years or practicing law for five years, at least they're acquainted with him or heard of him and they have some chance to object, but not so if he comes in from the outside as a stranger. If this amendment fails and if someone else does not put in a like amendment, I am prepared to put in an amendment incorporating Mr. Cooper's words regarding the legislature but placing them after the words in the third line, "for at least five years" and striking, "next preceding their respective nominations". I don't think they should be required to live here five years just immediately before their nomination because such a man might be elected to Congress and want to come back.

PRESIDENT EGAN: Mr.,Victor Fischer.

V. FISCHER: Mr. President, several speakers have referred to this provision as it now stands as one designed to protect the people of the state and have attacked this proposed amendment as being one that would remove the protection from the people. I disagree completely with that kind of an approach. I am sure that the legislature would put in requirements that would insure protection of the people of Alaska but at the same time, by leaving it to the legislature, we would also insure that it would be flexible enough to assure that we would get good judges in Alaska.

PRESIDENT EGAN: Mr. McNees.

MCNEES: I move the previous question.

PRESIDENT EGAN: Mr. Taylor had been trying to get the floor. Mr. Taylor.

TAYLOR: There has been some objection voiced here as to citing Puerto Rico as an example of building a fence around themselves. Now Mr. Kilcher says we should not pay any attention to that example because they speak a different language, they are a different class of people, they are on a little island. I would like to call Mr. Kilcher's attention to the fact that Hawaii, who has called their convention and have a constitution, and we have referred to it a good many times here, they have the ten-year residence and practice provision for the judges of Hawaii. Now nobody has spoken out against the Hawaii Constitution. The Congress has not said to them they cannot have statehood because they have got a ten-year residence and practice.for judges. It is the accepted thing all over the United States. The various constitutions that have been drawn or revised within the past ten or twelve years, have all got the residence requirement up to 15 years. I don't think we are letting the bars down in this thing whatsoever, and as I said, we had the meeting the other day with a number of people who were objecting to this, Mr. Cooper amongst them, and at that time the Judiciary Committee agreed with those men that after the word "nomination" at the end of the paragraph we would insert a semicolon and, "provided however that the legislature may prescribe other qualifications" and leave the paragraph as it was. Well. we had agreed that the members of the Committee would not make any changes but we would support that amendment, and I will support that amendment if it is put at the end of the present paragraph. Mr. Johnson says he will do it. Also, coming back to this fact of the striking of this five-year residence and five-year practice provision here, I think that is brought about by certain elements in Alaska wanting some outside judges. Now, there is only one man who spoke on the Board of Governors for that. That is a man who is a big corporation attorney, and he is the one who wants to get the judges from outside. Is it not much better that we have judges from lawyers in Alaska? We know them, we have a chance to pass on their qualifications and if they have a five-year residence and a five-year practice, we know it. But what would we know about a man's ability, his honesty and integrity if he is dragged in here from the outside, perhaps for a particular purpose? I feel we should select them from the people that we know. I think we should leave this in here.

UNIDENTIFIED DELEGATE: Question.

PRESIDENT EGAN: If there is no objection, the Convention will stand at recess for one moment. The Convention is at recess.

RECESS

PRESIDENT EGAN: The Convention will come to order. The Chief Clerk will please read the proposed amendment as amended, as it is now offered by Mr. Cooper.

CHIEF CLERK: "Page 3, line 2, after the word 'state', delete the rest of the section and substitute the following: 'and possess such additional qualifications as may be prescribed by law.'"

UNlDENTIFIED DELEGATE: Question.

METCALF: Roll call.

PRESIDENT EGAN: Mr. Cooper.

COOPER: Mr. President, inasmuch as I moved this amendment, do I have the right to close the debate?

PRESIDENT EGAN: That is correct.

COOPER: All I can say is that in listening to this entire discussion what has been proven to me so far is that the best qualifications for a judge is an Alaskan who has lived here for five years and been admitted to practice law for five years. That is practically the only qualification as it now stands. I can see no reason why that is necessary. The best men, possibly a better man, will be available and made available to the people of Alaska if that man has the right to serve as a judge whether he has lived here for five years or not. It is the people of Alaska that are going to be tried by these judges and not the Alaska Bar Association, and the best judge that can be secured to sit on the bench is what the people are entitled to. The people have only one recourse and that is through the legislature. That is why my amendment was presented. That is their final recourse, the only recourse, and if additional qualifications should be or could be prescribed by the legislature to secure a better judge, then I believe that is the right of the people.

PRESIDENT EGAN: The question is, "Shall Mr. Cooper's amendment as amended, be adopted by the Convention?"

JOHNSON: Mr. President, I request a roll call.

PRESIDENT EGAN: The Chief Clerk will call the roll.

(The Chief Clerk called the roll with the following result:

Yeas: 32 - Awes, Buckalew, Cooper, Cross, Davis, Emberg, V. Fischer, Hermann, Hilscher, Hinckel, Hurley, Kilcher, Lee, Londborg, McNealy, McNees, Marston, Nerland, Nordale, Peratrovich, Poulsen, Reader, Riley, R. Rivers, Rosswog, Smith, Stewart, Sundborg, VanderLeest, White, Wien, Mr. President.

Nays: 21 - Armstrong, Barr, Boswell, Coghill, Collins, Gray, Harris, Hellenthal, Johnson, King, Knight, Laws, McCutcheon, McLaughlin, Metcalf, Nolan, V. Rivers, Robertson, Sweeney, Taylor, Walsh.

Absent: 2 - Doogan, H. Fischer.)

CHIEF CLERK: 32 yeas, 21 nays, and 2 absent.

PRESIDENT EGAN: So the proposed amendment has been adopted by the Convention. Mr. Hinckel?

HINCKEL: On Friday I had an amendment in which I did not withdraw, but I withdrew .my motion for approval. I would now like to withdraw the amendment and substitute an amendment that reads as follows --

PRESIDENT EGAN: Mr. Hinckel asks unanimous consent. Was it ever offered for the record? It was not moved, Mr. Hinckel, so it would not have been on the record, and you can just offer the new amendment if you so choose.

HINCKEL: I offer this amendment and ask unanimous consent. "Section 5, line 6. Proposal No. 2, after the words, 'rejection of the voters' we delete the words, 'of the State'."

PRESIDENT EGAN: In line 6, page 2, wasn't the word "qualified"?

HINCKEL: I had previously suggested that the words "those voters of the State" be deleted and another phrase substituted, but now I am requesting only the words "of the State" be deleted because I am told by legal counsel that I accomplish the same purpose by just striking those words.

PRESIDENT EGAN: Do you ask unanimous consent for the adoption of that proposed amendment, Mr. Hinckel?

HINCKEL: I do.

PRESIDENT EGAN: Is there objection to Mr. Hinckel's unanimous consent request? Mr. Stewart?

STEWART: May I ask Mr. Hinckel to explain why.

HINCKEL: The object in making the request was that I felt if it was left worded as it is that there is the possibility of interpretation that all elections or confirmations of judges for the superior and supreme court for the statewide election, and I felt that the superior court judges should be confirmed

by the people under their jurisdiction.

PRESIDENT EGAN: Mr. McLaughlin, you may ask a question.

MCLAUGHLIN: Merely to confirm Mr. Hinckel, he did discuss the matter with the Judiciary Committee, and we unanimously agreed that it would not change the deletion of the words, "of the state" on line 6, page 2, would not change the meaning and would effectuate the purpose that Mr. Hinckel sought. In other words, the Judiciary Committee unanimously consents.

PRESIDENT EGAN: Is there further objection to Mr. Hinckel's unanimous consent request? If not, the request has been adopted by the Convention. and the words "of the State" are ordered deleted. Mr. Sundborg.

SUNDBORG: Mr. President, I move and ask unanimous consent that we recess for ten minutes.

PRESIDENT EGAN: If there is no objection the Convention will stand at recess for ten minutes. The Convention is at recess.

RECESS

PRESIDENT EGAN: The Convention will come to order. The Chair has been informed that we have with us some of the members of the Board of Governors of the Alaska Bar Association. We have the President of the Alaska Bar, Mr. Mike Monagle of Juneau, and we are certainly happy to have you with us this morning. We are now on Section 8 of the Committee Proposal No. 2. Are there amendments to Section 8? If not, we will proceed to Section 9. Are there amendments to Section 9?

HURLEY: May I ask the Chairman of the Committee on Judiciary a question?

PRESIDENT EGAN: You may, Mr. Hurley, if there is no objection.

HURLEY: Is there in your opinion, Mr. Chairman, any possibility that the judicial council would nominate a large number of persons for selection by the governor? In other words, say ten, in which case it would, in effect, place the selection and the nomination on the governor and relieve the judicial council of any responsibility for having selected a precise panel. In other words, the fact that there is no upper limit there, would that affect the --

MCLAUGHLIN: The possibility does exist that the council could do that. Under the Missouri Plan, that is under the Missouri Constitution from which this section is derived, it reads "not less than three". It was the intent of the Judiciary Committee not to make it "not less than three" because then by law the council would be required to present three persons.

It is the desire of the Judiciary Committee and to some extent that had confirmation of the Board of Governors of the Alaska Bar Association that we keep the selections down to a minimum, because of the limited number of lawyers that we have in the Territory we wanted to restrict the selection of the governor. In fact, the fear has been expressed already that initially the governor might have too much determination in selecting the judges. For that reason it was kept down to two, but with the increase in size of the state it is well recognized that then the judicial council should have latitude in submitting more than two nominations for the one vacancy.

SUNDBORG: May I be permitted to address a question to Mr. McLaughlin?

PRESIDENT EGAN: You may, if there is no objection.

SUNDBORG: Mr. McLaughlin, several days ago when we were discussing this article for the first time, as I heard you, you answered a question, asked by someone, on whether if the governor did not like the names suggested to him he could call for more names, and my recollection was that you answered that in that case more names would be supplied. Was that a considered answer?

MCLAUGHLIN: That was not a considered answer. I believe that I corrected myself. Under this article, under Section 9, the governor has no right of refusal, he cannot refuse. The obvious answer to it, that's the way the section was intended, if there was any other intent it would mean, particularly with the present status of the Alaska Bar, that if the governor refused, he would very promptly exhaust all nominees and he would pick the man that he wanted.

SUNDBORG: Thank you, I just wanted to clear the record. May I address another question to Mr. McLaughlin?

PRESIDENT EGAN: If there is no objection.

SUNDBORG: Also with respect to Section 9. it does not mention there is an office of chief justice. Is there an office of chief justice created by this article? The reason I ask is that when a man, for instance, is appointed by the governor to the position of chief justice, does he hold that position subject to the elections every ten years, and the retirement provision is in here for life, or does each governor who is elected have the right to name a chief justice from among the panel that then makes up the supreme court?

MCLAUGHLIN: There is an office of the chief justice and once appointed by the governor, he remains the chief justice for life or until removed by the voters or until retired for other cause or resignation.

PRESIDENT EGAN: Mr. White?

WHITE: My question was somewhat along the same line, Mr. President. I am not sure that that answered it or not. Did I understand the intent of this section Mr. McLaughlin, to be that when the office of chief justice of the supreme court becomes vacant it, the new appointee is automatically the chief justice?

MCLAUGHLIN: Those who are designated by the judicial council, the nominees, the governor selects one of the two or maybe three nominees. The governor selects one of those and that man becomes the chief justice.

WHITE: Not only the first time but each subsequent time the office becomes vacant?

MCLAUGHLIN: That is correct.

PRESIDENT EGAN: Mr. Fischer.

V. FISCHER: Following through on the same line, if the governor desired to elevate one of the justices of the supreme court to be the chief justice, it would have to go through the regular procedure of approval by the judicial council that his name might be one of two submitted to the governor, and then it would be up to him to choose?

MCLAUGHLIN: That does not preclude a member of the supreme court from becoming chief justice. Actually, under this act he could resign. The judicial council could select him, he and someone else submitted to the governor and if the governor selected him, then he would become chief justice.

V. FISCHER: Would he have to resign?

MCLAUGHLIN: There is a possibility he would have to resign.

PRESIDENT EGAN: Are there any other questions or amendments relative to Section 9? If not, we will proceed with Section 10. Are there amendments to Section 10? Mr. Sundborg?

SUNDBORG: Mr. President, may I be permitted to address a question to Mr. McLaughlin? With respect to Section 10 I am in the dark as to what you mean by this phrase, "on the basis of appropriate area representation".

MCLAUGHLIN: The phrase, "on the basis of appropriate area representation" was put in there as a guide in order to assure that the judicial council would not consist entirely of three lawyers, let us say from an area like Anchorage. It was intended to have the representation from all areas of the Territory. We were indicating an intent to have a geographical

representation.

SUNDBORG: That then refers to and modifies the word, "appoint". They "appoint on the basis of appropriate area representation"?

MCLAUGHLIN: That is right.

V. RlVERS: Are members of the bar, all members of the bar, members of the "organized state bar", or is that just the American Bar Association?

MCLAUGHLIN: The "organized state bar" was a generic term the Committee took as best representing what would be a statewide organization of attorneys. Originally the Committee did have the expression "The Alaska Bar Association or its successor". The difficulty was that the legislature could terminate the organized bar, that is terminate the integrated bar, and we use the "organized bar" as best representing that association which would represent all the attorneys of the Territory.

V. RIVERS: "Organized state bar" would not necessarily imply that all members admitted to the bar then were members of that organized bar, is that right?

MCLAUGHLIN: That would imply this, that all could belong to it.

PRESIDENT EGAN: Mr. Hurley.

HURLEY: Mr. President, I would like to address a question to Mr. McLaughlin. My question really has reference to Section 11 but affects Section 10. In Section 11 you mention that "the chief justice shall thereafter be ex officio a seventh member and the chairman of the judicial council" and then mention that it requires an affirmative vote of four of its members. Does the term, "ex officio member", restrict his voting rights in that group?

MCLAUGHLIN: It does not restrict his voting rights at all.

HURLEY: In the matter of a tie he would have a vote?

MCLAUGHLIN: He does anyway.

PRESIDENT EGAN: Mr. Smith.

SMITH: I would like to address a question to Mr. McLaughlin. I am just a little curious as to the Committee reasons for providing that the organized state bar shall appoint the three attorney members and that the governor shall appoint the three nonattorney members.

MCLAUGHLIN: The reason, Mr. President, for that is that is the very essence of the so-called Missouri Plan. The three who are appointed by the bar represent a craft in substance, the theory being, and it has worked out in Missouri, that they best know their brothers, and they are there, based solely on their professional qualifications but selected because they would represent in theory the best thinking of the bar, and they are there solely because they represent their craft. In essence there is nothing undemocratic about it because of the fact that we know by its very nature that the judges of the supreme and superior court will be attorneys. The three lay members are in substance those who represent the public. Under the Missouri Plan there is a specific provision that the members appointed by the bar of Missouri shall be elected. They specifically use the word "elected". We didn't use it, we did not deem it necessary. Under the Missouri Plan the three laymen are appointed by the governor. There is a difference in this Section 9 in the sense that the laymen under our Section 9 are required to be approved by the senate. That is, they are subject to confirmation by the senate. The reason that varies from the Missouri Plan is that what happened was in Committee there was quite some discussion about the popular representation.

DAVIS: Mr. President, before he goes ahead, he is talking about Section 9, I am sure he meant Section 10. I would like it to be clear.

MCLAUGHLIN: Do you desire me to proceed, Mr. President, or wait until that arises.

PRESIDENT EGAN: It might be inasmuch as the question has arisen that if there is no objection, Mr. McLaughlin could proceed. Mr. Fischer?

V. FISCHER: I would like to give cause to the question to arise by introducing an amendment on this subject.

PRESIDENT EGAN: Mr. Fischer, you may introduce your amendment at this time. The Chief Clerk will read the proposed amendment.

CHIEF CLERK: "Section 10, page 3, line 22, strike the comma after the word 'article', substitute a period and strike the remainder of the sentence."

V. FISCHER: Mr. President,. I move and ask unanimous consent for the adoption of this motion.

MCCUTCHEON: I object.

COGHILL: I second the motion.

PRESIDENT EGAN: Objection is heard. Mr. Coghill seconds the motion. The question is open for discussion. Mr. Fischer?

V. FISCHER: I would just like to briefly say that I believe the confirmation requirement is not necessary and is in a way

discriminatory against the lay members. I can see why it was put in originally, to give the legislature some say in the selection of judges. We have now amended Section 7 to provide that the qualifications, in effect, would be established by the legislature, and I believe that therefore we should not require confirmation of lay appointees to the council by the legislature.

PRESIDENT EGAN: Is there further discussion of the motion by Mr. Fischer? Mr. Taylor?

TAYLOR: Perhaps Mr. Fischer did not give full consideration to this particular section of the proposal. Under our present act, the Bar Association, the integrated bar, is an official body of the Territory. It is, you might say, chartered, by the legislature, and compulsory membership is required under the act. Nobody can practice law unless they have been admitted to the bar and belong to the integrated bar. Now the bar is screening their applicants, their men for the board, on this judicial board. They must have certain geographical representation in the integrated bar. We have three from the First Division, three from the Third Division and three from the combined Second and Fourth Divisions. So the selection of the three attorney members of the Commission are a selection by an official Alaska organization, the integrated bar. The other three would be selected and approved by the senate, appointed by the governor and approved by the senate. The attorney members have already been approved by the Alaska Bar Association, so why then put them through a further screening when they have already been screened by the members. The lay members have not been screened at all, only by the senate. We feel that the bar members are screened by the bar, then the lay members are screened by the senate. It makes it even.

PRESIDENT EGAN: Mr. Cooper.

COOPER: Mr. President, there is in Section 10, it is pertinent to this motion, the way that I interpret it, line 16, "the appropriate area", in line 20, "different major areas". I would like to ask Mr. McLaughlin if the intent was that the three attorney members of the judicial council would come from three appropriate areas and the three lay members would come from different major areas than that of the three appropriate areas?

MCLAUGHLIN: There is no difference. In fact, if the Committee on Style and Drafting desires in the future to change it, we would be delighted. The one reason why we have left in the words "major areas" on the laymen representation is the possibility (forgive me, Mr. Walsh) that Nome itself might have the feeling that it would be left out in its representation. If we struck "major areas" then there would be

an implication that we did not have to worry about certain areas of the Territory. Frankly, it is my belief that both could be made to conform and the same wording could be used.

COOPER: In other words then, the idea is not to cause the three laymen to come from different areas than the areas from which the three lawyers came?

MCLAUGHLIN: No, there was no such intent.

PRESIDENT EGAN: Mr. Londborg.

LONDBORG: I would like to ask the question of the Judicial Committee, if using the word major, does not that denote there is also a minor?

MCLAUGHLIN: In answer to that, Mr. Londborg, if the representatives from the alleged minor areas so desire, we can strike the whole expression, "major area or appropriate area" and then you're not assured of any representation at all. It is the desire of the Committee to have a general geographical representation on the judicial council and that includes all areas.

COGHILL: Point of order. I believe we are diverting from the subject before the Convention. We have a motion on confirmation by the senate for the nonattorney members. We are talking about representation from the major areas. I think we ought to dispose of the subject at hand.

PRESIDENT EGAN: You are correct, Mr. Coghill. That was allowed because the question was asked. The question is, "Shall Mr. Fischer's amendment, inserting a period and striking the words, 'subject to confirmation by the Senate', on line 22 of page 3, be adopted?" Mr. Davis?

DAVIS: Mr. President, was Mr. Fischer's motion seconded?

PRESIDENT EGAN: Yes, by Mr. Coghill. Mrs. Nordale?

NORDALE: I would like to call attention to the fact that one speaker said that the organized bar was an arm of the Territorial government and the senate was an arm of the Territorial government, and I would like to point out that the governor is certainly an arm of the Territorial government and elected by direct vote of the people.

HELLENTHAL: Mr. President, on Mrs. Nordale's suggestion I heartily agree. The people through their agency, the integrated bar, are going to screen the three attorney members. The people through their agent, the governor, will screen the nonattorney members. I don't know why we should get the senate in on the act in addition.

PRESIDENT EGAN: Does anyone else wish to speak on the subject?

UNIDENTIFIED DELEGATE: Question.

PRESIDENT EGAN: If not, the question is, "Shall Mr. Fischer's amendment be adopted?

METCALF: Roll call.

PRESIDENT EGAN: Mr. Metcalf asks that the roll be called. The Chief Clerk will call the roll.

(The Chief Clerk called the roll with the following result:

Yeas: 26 - Armstrong, Boswell, Coghill, Collins, Cooper, Cross, Davis, V. Fischer, Hellenthal, Hilscher, Hurley, Kilcher, Knight, Lee, Marston, Nordale, Peratrovich, Poulsen, Reader, Riley, R. Rivers, Rosswog, Sundborg, Sweeney, VanderLeest, White.

Nays: 27 - Awes, Barr, Buckalew, Emberg, Gray, Harris, Hermann, Hinckel, Johnson, King, Laws, Londborg, McCutcheon, McLaughlin, McNealy, McNees, Metcalf, Nerland, Nolan, V. Rivers, Robertson, Smith, Stewart, Taylor, Walsh, Wien, Mr. President.

Absent: 2 - Doogan, H. Fischer.)

CHIEF CLERK: 26 yeas, 27 nays and 2 absent.

PRESIDENT EGAN: So the amendment has failed of adoption. Mr. Sundborg?

SUNDBORG: Mr. President, I have an amendment to offer.

PRESIDENT EGAN: Mr. Sundborg has an amendment to offer to Section 10. The Chief Clerk will please read the amendment.

CHIEF CLERK: "Section 10, line 22, strike the words 'the Senate' and insert in lieu thereof the following: 'a majority of the members of the Legislature in joint session assembled'."

SUNDBORG: Mr. President, I move and ask unanimous consent for the adoption of the amendment.

JOHNSON: I object.

MCNEES: I second the motion.

PRESIDENT EGAN: The question is open for discussion. Mr. Sundborg?

SUNDBORG: Mr. President, this is a fairly basic matter also which I am sure is going to come before us in some other connection before we are through here. The practice in the Territorial legislature in the past has been that confirmation of appointments is by both houses in joint session assembled. I believe it has been a good practice. I don't believe that only the senate should have the right to express the people's will with respect to appointments by the executive, as it would be in this case, but that it should be by majority of all the members of the legislature and not just by majority of the members of the upper house.

PRESIDENT EGAN: Mr. Hilscher.

HILSCHER: Mr. President. I wish to speak in favor of the amendment. The situation can arise, as it has in the past, where in the makeup of our senate alone, there might be a majority of attorneys as members of the senate or there may be a sufficient number of attorneys that if they wish to exert certain influence, they could act as somewhat of a damper on confirmation of the lay members of that board. I believe that Mr. Sundborg's amendment is worthy of support.

BARR: I am not going to discuss it very widely, but I would say that I don't know what may happen in the future. The only thing I can do is judge by what has happened in the past. I have never been in the senate when there was a majority of attorneys. But I remember distinctly when there was a time when there were 14 attorneys in the house out of 24.

UNIDENTIFIED DELEGATE: Question.

PRESIDENT EGAN: Mr. Ralph Rivers.

R. RIVERS: I am a little concerned. I think the confirmation of the lay members of the judicial council should be the same as the confirmation procedure which will be uniform throughout our governmental structure. Now I don't know what the body has in mind or whether the constitution could contain a blanket clause to the effect that when the language "subject to confirmation" is used that means subject to confirmation by the members of both houses sitting in joint session. It seems to me that Mr. Sundborg made a good point, but I don't know whether we are doing the right thing by saying "subject to confirmation by both houses sitting in joint session" and later on come up with a different motive for the general operation of the state. I would like to hear from somebody.

MCNEES: May I ask Mr. Rivers if this might not be a general policy of the Convention to require the meeting of both houses

in joint session on issues of this magnitude or nature.

R. RIVERS: That would be fine if that were to turn out to be the fact.

HERMANN: I think the adoption of any such provision should wait upon the report of the Apportionment Committee and find out how big the house and senate are going to be. You might very well have the tail wagging the dog in this case.

PRESIDENT EGAN: The question is, "Shall Mr. Sundborg's proposed amendment be adopted?" All those in favor of the adoption of Mr. Sundborg's amendment will signify by saying "aye", all opposed "no".

MCCUTCHEON: Call the roll.

PRESIDENT EGAN: The Chief Clerk will call the roll.

(The Chief Clerk called the roll with the following result:

Yeas: 28 - Armstrong, Buckalew, Collins, Cooper, Davis. Emberg, V. Fischer, Hellenthal, Hilscher, Hinckel, Hurley, Kilcher, Lee, McCutcheon, McNealy, McNees, Marston, Nordale, Peratrovich, Poulsen, Reader, Riley, Smith, Stewart, Sundborg, VanderLeest, White, Mr. President.

Nays: 25 - Awes, Barr, Boswell, Coghill, Cross, Gray, Harris, Hermann, Johnson, King, Knight, Laws, Londborg, McLaughlin, Metcalf, Nerland, Nolan, R. Rivers, V. Rivers, Robertson, Rosswog, Sweeney, Taylor, Walsh, Wien.

Absent: 2 - Doogan, H. Fischer.)

CHIEF CLERK: 28 yeas, 25 nays and 2 absent.

PRESIDENT EGAN: The "yeas" have it and so the proposed amendment has been adopted. Are there other amendments to Section 10? If there are no further amendments, we will proceed --

STEWART: Mr. President, may we have that read as it was amended?

CHIEF CLERK: "Line 22, page 3, strike the words 'The Senate' and insert in lieu thereof the following: 'a majority of the members of the Legislature in joint session assembled'."

PRESIDENT EGAN: Are there other amendments? We will proceed with Section 11. Mr. Coghill?

COGHILL: Mr. President, Section 10, I have an amendment that

I am contemplating on proposing. However, first I would like to hear discussion by the Convention as far as the subject of confirmation by the legislature in joint session assembled, as far as the attorney members of these boards are concerned. I feel that we are going to be setting up a precedent here that all professional boards will be chosen by their given profession and a minority will be picked by the nonprofessional group and confirmed by the elected members of the electorate for Alaska, but in turn the professions of the doctors, lawyers, and dentists and all the rest of them are going to have the chance to load the committee with professional people.

PRESIDENT EGAN: Mr. Coghill, the Chair has been lenient in allowing discussion even through there was no motion on the floor, owing to the fact that questions have been asked. The Chair will have to ask that these discussions be confined to matters before the Convention.

COGHILL: Well I'll submit a proposal then, Mr. Chairman.

CHIEF CLERK: "Line 18, page 3, after the word 'bar' insert a comma and add the following: 'subject to confirmation by the Legislature in joint session assembled'."

COGHILL: Mr. President, I move and ask unanimous consent for the adoption of this amendment.

BUCKALEW: Objection.

COGHILL: I so move.

KILCHER: I second the motion.

PRESIDENT EGAN: Mr. Kilcher seconded Mr. Coghill's motion. Will the Chief Clerk please read the proposed amendment again.

CHIEF CLERK: "In Section 10, line 18, after the word 'bar' insert 'subject to confirmation by the Legislature in joint session assembled'."

PRESIDENT EGAN: Add a comma.

SUNDBORG: I wonder if I might ask Mr. Coghill if he would consent to a proposed change in his amendment which would not change the sense but I believe would be a little smoother. If on line 22, after the word "article" we change the comma to a period and then insert "both the attorney and nonattorney members shall be". It would then read, the new sentence, would say "both the attorney and nonattorney members shall be subject to confirmation by majority."

COGHILL: Mr. President, I consent to that with consent of my second because it does not change the intent of my amendment.

PRESIDENT EGAN: Mr. Coghill, it might be more in order if you ask that your original amendment be withdrawn and then submit it. There will be no confusion in the minds of the delegates when we vote on it, if that is what you are attempting to accomplish.

COGHILL: Yes, that's right. I will so move and ask unanimous consent that my proposed amendment be withdrawn.

PRESIDENT EGAN: Mr. Coghill asks unanimous consent that his. original proposed amendment be withdrawn. Is there objection? Mr. Riley?

RILEY: I object for purposes of comment. It would appear to me to be far more expeditious to act on it as first offered. Otherwise we are going to introduce the complication of, do we rescind our former action to put the show on the road. This could all be reconciled in Style and Drafting later if Mr. Coghill's motion is adopted.

SUNDBORG: I agree with that, Mr. President, and withdraw my suggestion.

PRESIDENT EGAN: Mr. Sundborg then asks unanimous consent that his motion be withdrawn. If there is no objection it is so ordered and we have Mr. Coghill's original motion before us. Mr. McLaughlin.

MCLAUGHLIN: I presume Mr. Coghill submitted this motion merely for the purpose of getting this on the floor. Coldly and calculatingly, if this motion is passed you might as well tear up the whole proposal and provide for the election of juries, because then it would be more efficacious and more democratic. 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. 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 careerists the best are the men engaged in the same type of occupation. That was the theory of the Missouri Plan. The theory was that the bar association would attempt to select the best men possible for the bench because they had to work under them. If you require a confirmation of your attorney members you can promptly see what will happen. The selection is not then made by the organized bar on the basis of a man's professional qualifications alone. The determination of the selection of those people who are on the judicial council will be qualified by the condition, are they acceptable to a house and a senate or a senate alone, which is essentially Democratic or essentially Republican. No longer is the question based solely on the qualification

of the candidate for the bench. The question is, will those people whom we set up here on the judicial council, that we send from the bar, will they be acceptable in terms of political correctness? If political correctness enters into the determination of the selection of those professional members who are to be placed upon the judicial council, the whole system goes out the window. All you have is one other political method of selection of your judges. The theory, and it is the only way it can possibly work, is that the lawyers are put on there to get the best man and not to take a man on the basis of his politics. But if we require confirmation, then the material consideration to be made by the Alaska Bar Association is, are we sending our best representative -- no. But are we sending a good Democrat acceptable to both members to both houses or are we sending a good Republican acceptable to both houses. If we permit that determination to enter into our consideration, then in substance we should provide for an initial election or initial appointment by the governor or some other body. Qualifications go out the window as soon as you have confirmation. 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 the best interests of the profession. They represent a desire to have the best judges on the benches. I beg of you, please don't vote for the amendment.

PRESIDENT EGAN: Mr. Ralph Rivers.

R. RIVERS: I want to heartily second the remarks of Mr. McLaughlin but also want to point out that the purpose of the draft as now written is to have a nonpartisan selection of these lawyer members, and the minute you adopt something like this, you are making a partisanship proposition out of it. We want that to carry through to a nonpartisan selection of judges, so I think our thinking is quite clear.

PRESIDENT EGAN: Mr. Coghill.

COGHILL: In bringing this up, I quite agree with both the Chairman of the Judiciary Committee and also the member. I believe that all of us here are working on committees real hard and we are trying to bring out good and concise thoughts. We are not trying to go to the extreme in our committee proposals, so that we will get a compromise on the floor. I don't think that is the intent. The purpose for this amendment is that I foresee that the nonattorney members of this board are going to be subject to all the ills of political skulduggery on the floor of the senate or the joint house assembled, and I see that if we are going to pick the judges on nonpartisan basis, that it should be left up to your representative of the government, the highest official in the executive branch which is your governor. That is the reason

why I voted for the amendment to strike that, the acceptance or confirmation by the senate. I think if we are going to accept some of them by the senate confirmation, we should accept them all. It is the precedent you are setting up here for boards on the professional level.

UNIDENTIFIED DELEGATE: Question.

PRESIDENT EGAN: The question is, "Shall Mr. Coghill's proposed amendment be adopted by the Convention?"

ROBERTSON: Roll call.

PRESIDENT EGAN: The Chief Clerk will call the roll.

(The Chief Clerk called the roll with the following result:

Yeas: 4 - Coghill, Kilcher, Londborg, Mr. President.

Nays: 49 - Armstrong, Awes, Barr, Boswell, Buckalew, Collins, Cooper, Cross, Davis, Emberg, V. Fischer, Gray, Harris, Hellenthal, Hermann, Hilscher, Hinckel, Hurley, Johnson, King, Knight, Laws, Lee, McCutcheon, McLaughlin, McNealy, McNees, Marston, Metcalf, Nerland, Nolan, Nordale, Peratrovich, Poulsen, Reader, Riley, R. Rivers, V. Rivers, Robertson, Rosswog, Smith, Stewart, Sundborg, Sweeney, Taylor, VanderLeest, Walsh, White, Wien.

Absent: 2 - Doogan, H. Fischer.)

CHIEF CLERK: 4 yeas, 49 nays and 2 absent.

PRESIDENT EGAN: So the proposed amendment has failed. Are there other amendments to the section?

TAYLOR: I have one.

PRESIDENT EGAN: Mr. Taylor has a proposed amendment.

TAYLOR: Mr. President, I am proposing this amendment to Section 7.

PRESIDENT EGAN: Mr. Taylor offers a proposed amendment to Section 7. The Chief Clerk may read the proposed amendment.

CHIEF CLERK: "Line 2, page 3, after the word 'State' strike the balance of the section and insert 'for at least three years and have been residents of the State for at least three years next preceding their respective nominations; provided, that additional qualifications may be prescribed by law.'"

TAYLOR: I ask unanimous consent for the adoption of the amendment.

SUNDBORG: Objection.

TAYLOR: I so move.

METCALF: I second it.

PRESIDENT EGAN: Mr. Metcalf seconds the motion of Mr. Taylor. Mr. Taylor?

TAYLOR:I would like to mention one thing. The matter was brought up and we have argued this thing quite thoroughly. I felt that it might be of the period of time that would elapse. Now in the last three years we have admitted perhaps 50 attorneys to the practice of law in Alaska, and it seems like there are going to be quite a number of them admitted each year from now on. Now this past year we had 25 who took the examination, the year before 19, so those men who in the past couple of years have taken the bar and have been admitted to the bar, in all probability by the time we achieve statehood will have the required residence of three years, and they have been practicing law for three years, which will make them eligible for the bench. It seemed the opinion of some of the proponents to eliminate the five-year period. It was through the fact there might not.be sufficient manpower, but I think that would be taken care of. Now, even putting the best light on it, we cannot anticipate we will have statehood for a year and a half or possibly more. I think I am being unduly optimistic when I say a year and a half. These men who are barred by time, that will be taken care of, as immaturity is always cured by the passage of time, and by three years we will have plenty of attorneys to pick for the judiciary. We feel there should be some restriction instead of dragging a man in from the outside and putting him on the bench, not knowing his qualifications or background, I think we should put at least three years because by that time there will be approximately 60 or 70 more lawyers in Alaska who will be judicial timber. I feel this amendment should be adopted.

PRESIDENT EGAN: Mr. McNees.

MCNEES: I rise to speak against the amendment on the same basis that I rose to speak against the original article as it was originally turned out in the Judiciary Committee. Feeling that it is not a matter of constitutional law but one of legislative law, therefore I oppose the amendment.

PRESIDENT EGAN: Mr. Gray.

GRAY: Will you have the Chief Clerk read the amendment again?

PRESIDENT EGAN: The Chief Clerk will please read the amendment.

CHIEF CLERK: "Section 7, page 3, line 2, after the word 'State', strike the balance of the section and insert, 'for at least three years and have been residents of the State for at least three years next preceding their respective nominations; provided, that additional qualifications may be prescribed by law.'"

PRESIDENT EGAN: The question is, "Shall Mr. Taylor's proposed amendment be adopted by the Convention?" Mr. Marston?

MARSTON: Mr. Chairman, I want to talk on this. I wish we would quit going back. We settled this. We are never going to get through.

TAYLOR: Point of order. He is not speaking on the subject.

MARSTON: We have passed on this. We have given our reasons.

PRESIDENT EGAN: Mr. Marston, under the circumstances, Mr. Taylor's point of order, if you say we have passed on this, will have to be well taken because we did not pass on the question that is before us at the present time.

MARSTON: No new subject matter is brought up here.

PRESIDENT EGAN: Mr. Marston, the Chair will have to hold that Mr. Taylor's point of order is in order because there is new subject matter here.

MARSTON: May I say I am opposed to this amendment?

PRESlDENT EGAN: That is right. Mr. Barr.

BARR: May I say I am in favor of this amendment? In answer to another member who took the floor a minute ago, he said that this was properly a legislative matter. I believe that certain qualifications should be specified by the legislature, but I believe that the constitution should state the basic law and preserve the rights of the people, and the people should be entitled to a judge who is properly qualified. That does not just mean qualified in the law. It means also qualified by various other types of experience, including experience in Alaska.

UNIDENTIFIED DELEGATE: Question.

PRESIDENT EGAN: The question is, "Shall Mr. Taylor's proposed amendment be adopted by the Convention?" All in favor of the --

MCCUTCHEON: Call the roll.

PRESIDENT EGAN: The Chief Clerk will call the roll.

(The Chief Clerk called the roll with the following result:

Yeas: 20 - Armstrong, Barr, Boswell, Coghill, Cross, Gray, Harris, Hellenthal, Johnson, King, Laws, McCutcheon, Metcalf, Nolan, R. Rivers, V. Rivers, Robertson, Sweeney, Taylor, Walsh.

Nays: 33 - Awes, Buckalew, Collins, Cooper, Davis, Emberg, V. Fischer, Hermann, Hilscher, Hinckel, Hurley, Kilcher, Knight, Lee. Londborg, McLaughlin, McNealy, McNees, Marston, Nerland, Nordale, Peratrovich, Poulsen, Reader, Riley, Rosswog, Smith, Stewart, Sundborg, VanderLeest, White, Wien, Mr. President.

Absent: 2 - Doogan, H. Fischer.)

CHIEF CLERK: 20 yeas, 33 nays and 2 absent.

PRESIDENT EGAN: And so the proposed amendment has failed to pass. Are there other amendments? Mr. Sundborg?

SUNDBORG: Mr. President, may I be permitted to address a question to Mr. McLaughlin?

PRESIDENT EGAN: If there is no objection, Mr. Sundborg.

SUNDBORG: Mr. McLaughlin, is it really necessary to provide at the end of Section 10 this language saying that the members of the judicial council "shall be compensated as provided by law"? It occurs to me that we have no such language, for instance, covering the compensation of the judges at all or of any other officials.

MCLAUGHLIN: There is provision specifically in the Act providing for compensation for the judges, and we did not want to make it mandatory, but we wanted to put it in there because we wanted to make it expressed that they could be paid for their services.

SUNDBORG: Is it your belief that if we did not have it in here that the legislature could not provide to compensate them?

MCLAUGHLIN: We are running close. Actually, I think the legislature, even if it were not in there, could provide for their compensation. I would prefer to leave it as it is, and if Style and Drafting so recommends, after discussion with members of the Committee, we might recommend --

SUNDBORG: As Chairman of Style and Drafting, I certainly would not, for myself, want to recommend such a thing as striking that out because I believe it is substantive.

MCLAUGHLIN: I would prefer on behalf of the Committee to leave it in.

PRESIDENT EGAN: Are there other amendments to Section 10? Are there amendments to Section 11? Mr. Hellenthal?

HELLENTHAL: Mr. President, I ask unanimous consent that the word "ex officio" be stricken in the fifth and sixth lines on page 4.

R. RlVERS: I object.

HELLENTHAL: I so move.

MCNEES: I second the motion.

R. RIVERS: The word "ex officio" means that that particular seventh member of the judicial council is the member of judicial council by virtue of the fact that he happens to be chief justice, and so that when the person who occupies the office of chief justice is changed the next chief justice, because he is chief justice, becomes a member of the judicial council, so I just think it is better to leave it in there.

PRESIDENT EGAN: Mr. Rivers, if I might ask a question, by specifically stating "ex officio" and not mentioning anything about his voting power, does that take away from him the right of voting except in the event of a tie?

R. RIVERS: No, he has full membership rights and the full vote at all times.

PRESIDENT EGAN: Where would that be definitely established?

R. RIVERS: I have seen it work through the Territorial government. Governor Gruening was a member of a half dozen boards and he was a voting member. I was an ex officio member of several boards. Now unless we say, "He shall not have the vote except in the event of a tie" ex officio member has full voting rights, so I like it the way it is.

PRESIDENT EGAN: Mr. Hellenthal.

HELLENTHAL: That was not my understanding of an ex officio member. I doubt that an ex officio member, so designated, has voting rights. I would like to withdraw my objection and ask that the word "voting" be inserted after the word "seven" in line 6, which will clearly obviate my objection.

PRESIDENT EGAN: Do you ask unanimous consent that that be included in your motion, Mr. Hellenthal?

HELLENTHAL: Yes.

PRESIDENT EGAN: Without objection, it is included in the original motion.

TAYLOR: Mr. President, I am going to object for the time being. I cannot see the use of putting in the word "voting", "the seventh voting member", because of the fact that if he is a member of the board, he has to vote. Being a presiding officer he would vote last. In case there were four votes cast in favor of him there would be no necessity -- only in case of a tie. Now ex officio in no way or intent can mean a man is not entitled to vote, if he has an office, sometimes he cannot vote, he's merely presiding but that's got to be prescribed. If it isn't prescribed, why he votes. Now the word "ex officio" does not mean to take away any rights conferred upon a member of a committee or a commission. Ex officio means by virtue of an office, the office, not the man, is actually a man. It happens to be whoever holds that office is a member -- is a member of the board. That is all it means. I can't see the use of putting in the word "voting".

PRESIDENT EGAN: Is there objection to a one-or two-minute recess? If there's no objection the Convention is recessed for one or two minutes.

RECESS

PRESIDENT EGAN: The Convention will come to order. What is the status of Mr. Hellenthal's amendment right now? Did you ask unanimous consent, Mr. Hellenthal, that your original amendment be withdrawn?

HELLENTHAL: Correct.

MCNEES: I withdraw my second.

PRESIDENT EGAN: If there is no objection, it is so ordered.

HELLENTHAL: I ask unanimous consent that the word "voting" be included following the word "seventh" in line 6, page 4.

PRESIDENT EGAN: Mr. Hellenthal asks unanimous consent that the word "voting" be included following the word "seventh" in line 6, page 4.

HELLENTHAL: Mr. President, I don't mean to be picayune but apparently in the Senate of Alaska as it is now constituted, the president who is the ex officio member of boards is not entitled to a vote. Now Robert's says if the ex officio member is not under the authority of the society he has all the privileges including the right to vote, so the question is whether or not the chief justice under this proposal would be under the authority of the society, and I would interpret the society to mean there the seven-man supreme court. There is still a very grave question in my mind. One group here tells me that he is under the authority of the society. Another group says that he is not. If there is question why don't we leave the word "voting" in?

PRESIDENT EGAN: Mr. Hellenthal, I wonder if you would be acceptable to the proposition that this matter be turned over to the Rules Committee in conjunction with the Judiciary Committee and that they come to some determination on it and report at some later time.

HELLENTHAL: I am very happy with that suggestion.

PRESIDENT EGAN: If there is no objection Mr. Hellenthal's request will be held in abeyance until such time as a complete report is made on that subject to the Convention. Are there other amendments to Section 11 or 12? If not, are there proposed amendments to Section 13? Are there proposed amendments to Section 14? Mr. McLaughlin?

MCLAUGHLIN: Mr. Chairman, may I read into the record so that the Convention will well know that under Section 13 we did not go into minute detail concerning the functions of the judicial council, but inquiry has been made whether or not the judicial council would make budgetary recommendations to the legislature. That is specifically inherent in these recommendations. Matters such as court structures would include budgets. Administration of the court would include budgetary recommendations to the legislature.

PRESIDENT EGAN: Mr. Victor Rivers.

V. RIVERS: Mr. Chairman, I would like to ask a question of Mr. McLaughlin. I would also like to have the answer read into the record. Is it intended that the judicial council shall also make studies and recommendations of the lower courts and see if they can get from our present system some considerable more semblance of order or procedure?

MCLAUGHLIN: That would be specifically intended under such a phrase as including such matters as court structure.

PRESIDENT EGAN: Are there amendments to Section 13? Amendments to Section 14? Are there amendments to Section 15? Are there proposed amendments to Section 16? Mr. Gray.

GRAY: Mr. Chairman, I would like to ask the Chairman of the Judiciary, in Section 15, where the judges, "...at the age of

70, on such retirement pay as may be prescribed by law, and shall render no further service on the bench, except for special assignments as provided by court rule." What do you mean by that phrase?

MCLAUGHLIN: That was intended. The presumption is that at sometime the Committee decided that age 70 is about the time that men may become subject to the infirmities of age and it would be just as well to have that as the arbitrary time at which they retire. As for special assignments, it is fair to presume that at some time in Alaska we will have a Mr. Justice Oliver Wendell Holmes who was quite effective at the age of 92 or we might have a Cardozo, where their services and experience would be of great benefit to the state, then the exception could be made to utilize those men for special assignments.

PRESIDENT EGAN: Mr. Ralph Rivers.

R. RIVERS: Mr. President, we often encounter occasions when the docket gets overly crowded and if you could recruit an experienced jurist who doesn't happen to be infirm, -- it's pretty handy to have him available, if he is willing to serve. Often times leave is granted to judges for particular persons and one of these men could be made use of during such periods.

PRESIDENT EGAN: Mr. Cooper.

COOPER: Could I ask a question of Mr. McLaughlin?

PRESIDENT EGAN: If there is no objection, you can direct your question.

COOPER: Mr. McLaughlin, again do I understand that in line 25 on page 5 and the first two lines on page 6, "The basis and amount of retirement pay for justices and judges who retire or are retired at an earlier age shall be prescribed by law." Does that mean that they can retire themselves at the age of 60 if they decide they want to go into retirement and that they will be provided with a form of retirement pay if they are the ones that elect to retire?

MCLAUGHLIN: That means that the legislature can determine exactly what retirement provisions are, that is what retirement is and they can make an allocation of one dollar a year or 30,000 dollars a year, but they shall lay down the rules as to what retirement is, and what constitutes it.

PRESIDENT EGAN: Mr. McCutcheon.

MCCUTCHEON: Mr. President, I would like to direct a question to Mr. McLaughlin.

PRESIDENT EGAN: Without objection, you may direct the question.

MCCUTCHEON: In other words, a mandatory retirement of 70 years does not obviate the possibility that the legislature may set a lower retirement age?

MCLAUGHLIN: That is true.

PRESIDENT EGAN: Mr. Ralph Rivers.

R. RIVERS: Mr. President, we have fixed a compulsory retirement age at 70. Reading of this article shows that the judicial council may recommend earlier retirement for judges who are infirm and may not have the capacity to continue performing their services. In some instances a person will get fairly stubborn and he will not resign. We have a forced retirement on account of infirmities prior to age of 70 based on action of the judicial council, or recommendation of judicial council, or if it happens to be a member of the supreme court it would be on the recommendation of a board of three persons appointed by the governor to investigate the matter and with retirement by the governor, but I think that the legislature could not retire judges on a compulsory basis earlier than 70 if we spell 70 in here.

MCLAUGHLIN: Mr. Rivers, the State of Maine -- I was answering Mr. McCutcheon, State of Maine has a provision that no provision for retirement as such, but it provides that if you are not off the bench when you are 70 you won't collect any pay. So in effect the legislature could provide if you are serving on the bench after the age of 65, their act concerning retirement benefits would be ineffective, that you would waive all rights to them and in that sense the legislature could so provide.

R. RIVERS: In that sense I will concur.

PRESIDENT EGAN: Mr. McNealy.

MCNEALY: I would like to address a question to Mr. McLaughlin.

PRESIDENT EGAN: If there is no objection Mr. McNealy, you may ask your question.

MCNEALY: Mr. McLaughlin, have you and your Committee checked into the number of states that do provide for retirement pay for state judges?

MCLAUGHLIN: We did check on it, but we left the matter entirely to the legislature. There was some discussion whether or not we should provide a definite mechanical or arithmetical figure, and the Committee wholeheartedly decided that was a

matter that should be left to the legislature. In terms of constitutional provisions for retirement, New Jersey retires at 70 without a right of special assignment. Connecticut, New York, New Hampshire at 70, Missouri at 75 and Louisiana at 80. They set them forth, I believe, in their constitution. The statutory limit for retirement age is generally set at 70. Hawaii for instance, under their constitution, retires at 70 under Article 5, Section 3.

V. FISCHER: I would like to know whether the term "retire" or "are retired" includes defeat at an election. For instance, assume that a justice has served for 25 years and then at the age of 68, he is defeated at the polls when he comes up for reconfirmation. Would he be precluded by the term "retire"?

MCLAUGHLIN: Mr. Chairman, these are curbstone opinions, but the legislature could determine that a justice who had served so many years and then was defeated for reelection could be retired and use the expression under the constitution and so provide for it. These are outside limits that we are setting on the activities of judges.

PRESIDENT EGAN: Are there other amendments to -- Mr. Hellenthal?

HELLENTHAL: I worry somewhat about the words "except for special assignments as are provided by court rule." It seems to me I have heard of abuses in this regard. Perhaps the word "temporary" should be inserted before the word "special". Here we will have the rule-making body, which will have a tendency to recognize that their mental abilities will continue unimpaired after 70. They will all be convinced of it in fact. They are going to make the rule and they might keep themselves on indefinitely under the guise of special assignments. I ask Mr. McLaughlin if the word temporary" might not preclude that possibility.

MCLAUGHLIN: Mr. Chairman, it is the belief of the Committee that that is mere legislation. The age of 70 was specifically set forth so there would be no embarrassment on retiring a person. If there is an abuse of the special assignment privilege, I might point out the legislature controls the purse strings and if it is abused, there will be no appropriation for the purpose. It is something that we should not necessarily anticipate or write into our constitution.

HELLENTHAL: I do not favor enacting legislation by cutting off appropriations and I therefore ask unanimous consent that the word "temporary" be inserted prior to the word "special" on line 24.

PRESIDENT EGAN: Line 24, on page 5?

HELLENTHAL: Yes.

PRESIDENT EGAN: You ask unanimous consent?

R. RIVERS: I object for a question.

PRESIDENT EGAN: Objection is heard. Mr. Ralph Rivers?

R. RIVERS: I would say it would be better to substitute the word "temporary" for the word "special" and not put them both in.

HELLENTHAL: I consent to that.

PRESIDENT EGAN: Then if there is no objection -- Mr. Davis?

DAVIS: I would object to that. I like it the way it is.

PRESlDENT EGAN: Your objection is heard. Do you so move, Mr. Hellenthal?

HELLENTHAL: I so move that the word "temporary" be inserted in lieu of the word "special" in line 24.

PRESIDENT EGAN: Mr. Hellenthal moves and asks unanimous consent that his proposed amendment be to insert the word "temporary" prior to the word "special" in line 24.

JOHNSON: I object to the unanimous consent.

R. RIVERS: Did you say instead of the word "special"?

PRESIDENT EGAN: The Chair understood that Mr. Hellenthal had changed his mind but the Chair was probably in error.

HELLENTHAL: No, that incorporates Mr. Rivers' suggestion which was, as I interpret it, that "temporary" be substituted for the word "special" and I did not ask unanimous consent but merely moved that the change be made.

POULSEN: I second it.

PRESIDENT EGAN: Mr. Poulsen seconds the motion. Mr. Gray?

GRAY: I would like somebody to explain to me the difference between these two proposals.

PRESIDENT EGAN: Mr. Hellenthal, would you explain the difference?

HELLENTHAL: Yes, the special assignment is limited to a temporary one now, whereas under the former wording a special assignment could go on for ten years and could be used as a guise for increasing the tenure of the judges by the exercise of their own rule-making power.

PRESIDENT EGAN: Mr. Kilcher.

KILCHER: I see what Mr. Hellenthal is driving at, but I am afraid the mere change of the word "special" to "temporary" would not accomplish his purpose because "temporary" is almost synonymous with "indefinite". It is an amount of time. If we are going to burden the constitution with such things, it is useless. Either we forget about the matter entirely or specify it further.

PRESlDENT EGAN: Mr. Davis.

DAVIS: Mr. President, I realize that the cases are special and possibly unusual, but there have been many, many cases of very exceptional judges who were well beyond 70 years. I think it is unwise in the constitution to make it impossible for such judges to serve their state. After all, they have all of the experience of their years of service on the bench. Now personally I am against the 70-year retirement age, but the Committee has gone over that back and forth, one way or the other, and I am not going to raise an objection that way, but I would certainly like to see it provided in the constitution so that in the event we have a person who is physically and mentally capable to be a judge, and in the event we have crowded dockets and we need to assign somebody to help clear up the docket, that we have the power to do so. And if we say "temporary" that means, I suppose, just what it says -- temporary. You could not assign a man to do a job that needed to be done if it was something more than temporary. For that reason I like the language as is, "for special assignments".

PRESIDENT EGAN: Is there further discussion?

NOLAN: Question.

PRESIDENT EGAN: If not, the question is, "Shall Mr. Hellenthal's proposed amendment be adopted by the Convention?" All in favor of the adoption of the proposed amendment say "aye", all opposed by saying "no". The "noes" have it and the amendment has failed. Are there other amendments to Section 15? Mr. Taylor?

TAYLOR: I have an amendment.

CHIEF CLERK: "Amend Section 15 by striking the following words: On line 22, page 5, 'at the age of 70'."

PRESIDENT EGAN: What is the pleasure?

TAYLOR: I move the adoption of the amendment.

PRESIDENT EGAN: Mr. Taylor moves the adoption of the proposed amendment. Is there a second to the motion? Hearing no second --

HELLENTHAL: I will second the motion.

PRESIDENT EGAN: Mr. Hellenthal seconds the motion. The question is, "On line 22, page 5, shall the words 'at the age of 70' be deleted from the section?"

BUCKALEW: Question.

EGAN: All those in favor of the adoption of Mr. Taylor's proposed amendment will signify by saying "aye", all opposed by saying "no". The "noes have it and the amendment has failed. Are there other amendments? Mrs. Wien?

WIEN: Mr. President, I move and ask unanimous consent that this Convention recess until 1:30 this afternoon.

PRESIDENT EGAN: Mrs. Wien asks unanimous consent that the Convention stand at recess until 1:30 p.m. Mr. Sundborg?

SUNDBORG: As announced yesterday, the Style and Drafting will meet at 12:15, in the lunchroom.

PRESIDENT EGAN: The Chair would like to state there will be no meeting of committee chairmen as had been previously announced. Miss Awes?

AWES: The Bill of Rights Committee will meet at 12:45.

RILEY: Subject to Mr. McLaughlin's views, such members of Rules and Judiciary who are free to get together during the noon hour should perhaps do so to resolve that one question we have heard.

PRESIDENT EGAN: The Rules Committee and Judiciary will meet during the noon hour. Mr. Nerland?

NERLAND: Mr. President, I request the members of the Finance Committee meet for just a few minutes immediately following recess.

PRESIDENT EGAN: The members of the Finance Committee will meet immediately upon recess. Mr. McNealy?

MCNEALY: Mr. President, I request a meeting of the Ordinance Committee, No. IV, at 12:15.

PRESIDENT EGAN: There will be a meeting of the Ordinance Committee at 12:15. Hearing no further committee announcements and no objection, then the Convention will stand at recess until 1:30 p.m.. The Convention is at recess.