Legislature(2001 - 2002)
05/06/2001 05:08 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
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SB 161 - TIMELY JUDICIAL DECISIONS/ JUDGES' PAY CHAIR ROKEBERG announced the first order of business, CS FOR SENATE BILL NO. 161(FIN), "An Act relating to the withholding of salary of justices, judges, and magistrates; relating to prompt decisions by justices, judges, and magistrates; relating to judicial retention elections for judicial officers; and providing for an effective date." Number 0106 SENATOR DAVE DONLEY, Alaska State Legislature, came forth on behalf of the Senate Judiciary Standing Committee, sponsor of SB 161. He stated that SB 161 updates and clarifies existing law requiring judges to provide a salary warrant indicating they don't have any decisions that have been pending for more than six months. It also sets out state policy, in Section 1, for the majority of cases to be decided within six months and for appellate cases to be decided within six months of oral argument. SENATOR DONLEY reported that SB 161 also provides information to be included in the voter's guide regarding any judicial officer who was up for retention and failed to issue a salary warrant. [Senate Bill 161] provides an annual report to the legislature of how many cases had been pending more than the periods of time that are set out in the policy as well as additional information about the types of cases that are taking longer than the target dates or times. SENATOR DONLEY said SB 161 clarifies that information regarding salary warrants of the judges is public information. In the past, there was some difficulty with the Department of Administration refusing to provide that information to the [Alaska] Judicial Council, which is in charge of ranking and reviewing the judges; without being able to get the information, the judicial council had difficulty making a full analysis. REPRESENTATIVE COGHILL asked Senator Donley for the rationale behind the 2004 effective date. SENATOR DONLEY responded that he thinks the effective date is a holdover from the original bill, which had stricter guidelines for appellate courts. The late effective date was there to give the court more time to "gear up" and clear its docket. Number 0386 REPRESENTATIVE JAMES asked Senator Donley what would happen if the six months go by and the judges don't do what they are supposed to do. SENATOR DONLEY answered that existing law has been in place since statehood whereby in order for judges to get their paychecks, they must sign an affidavit saying they have had no matter pending for more than six months. Whereas [SB 161] provides some fine-tuning, it doesn't change that basic system. REPRESENTATIVE JAMES asked whether many [judges] have not been getting paid. SENATOR DONLEY replied that most have been getting paid, because most have been able to sign their affidavits. He stated that there are instances when judges don't get paid and have to deal with a backlog. REPRESENTATIVE JAMES asked whether it is just a delay in their paychecks. SENATOR DONLEY answered in the affirmative. He said [the judges] won't lose their money; once they catch up, they receive their back pay. Number 0537 REPRESENTATIVE JAMES asked whether [SB 161] allows for this to be recorded in the election bulletin. SENATOR DONLEY answered affirmatively. He said for the first time, a state policy is adopted consistent with the goals of the court system. Also, it is specified that if a judge hasn't been able to fill out the affidavits and has violated the time period, that information would be put before the voters in the voter's guide. He added that the judge has the opportunity to respond to that in the voter's guide. REPRESENTATIVE JAMES asked whether there have been studies regarding the costs to the people in court when a judge takes an extended time to make a decision. SENATOR DONLEY responded that most decisions in the appellate courts have been accomplished in under a year. He thinks there are about 20 cases currently before the supreme court that have been there for more than a year; few cases have been there for more than two years; and one case has been there for more than three years since the final pleading. The court recognizes that it is too long and is trying to live with the policy of getting them done within a year. CHAIR ROKEBERG asked where in the bill the one-year policy is mentioned. SENATOR DONLEY answered that it is on page 1, line 13, and states "that virtually all appellate cases be decided within one year following the date that the case is taken under advisement". Number 0730 CHAIR ROKEBERG asked whether it is reflected in the statute. SENATOR DONLEY explained that the original bill did include a one-year provision for appellate courts. The court strongly objected and said it was unfair to hold individual justices responsible for the collective inability of the appellate courts to reach a final decision. Additionally, the courts said the position of the court administration was that legislative mandates, as far as judicial time decision periods, are unconstitutional. While recognizing that the six-month [rule] has worked well, they believe expanding it to include appellate courts would foster litigation which would likely lead to a decision that it was unconstitutional. Therefore, that has been deleted [from the original bill] and policy guidelines and reporting [back to the legislature] were inserted, which the court system does not oppose. CHAIR ROKEBERG asked whether the [final Senate version] reflects a reaffirmation on the existing state statute and policy, and clarifies it in relationship to a pamphlet and other reporting. SENATOR DONLEY responded that that is a fair assessment. He said it is consistent with existing policy and policy guidelines that are being adopted by the supreme court, yet for the first time this is made public information. CHAIR ROKEBERG asked whether previously this information was not open to the public. SENATOR DONLEY responded that several years ago the Alaska Judicial Council requested that the Department of Administration provide information regarding judicial warrants, but the department refused. Number 0963 CHRIS CHRISTENSEN, Deputy Administrative Director, Office of the Administrative Director, Alaska Court System, came forth and stated that the purpose of this legislation is to encourage timeliness and eliminate any unnecessary delay in judicial decision-making. He said: The chief justice and other members of the supreme court share Senator Donley's concern. And as many of you know, they have been taking many steps in the last two years to address timeliness issues. Last year the supreme court adopted very detailed time standards for the trial courts. "Time standard" is a quantifiable goal for the delivery of court services to litigants. Different time standards were adopted for different kinds of cases. Our computer system is antiquated, but we hope to start issuing quarterly reports on the achievement of these time standards later this year. Last October, we used federal funds to train all judges on case management techniques. We have established a mentoring program so that judges who are particularly efficient can take new judges or less efficient judges under their wings and teach them the tricks of the trade. As the chief justice told you during her State of the Judiciary speech a few months ago, the supreme court is also committed to shortening time in appellate cases. About two weeks before this legislation was introduced, the court adopted time standards for appellate court cases and new procedures for flagging and monitoring cases so that cases that are being delayed don't languish. I would note that this is very unusual. While it is pretty common for supreme courts to adopt time standards for the trial courts, it's almost unheard-of for a court outside to adopt it for itself, but our supreme court thinks this is important. Judicial timeliness is an important issue to everybody in this room. We've been actively taking steps to address it [and] we're going to continue. Now, while the court system did oppose the original version of Senate Bill 161, the bill sponsor has done a great deal of work on it during the committee process. We're very appreciative of his interest in our concerns, and we do not oppose the bill in its current form. The bill makes a statement of legislative intent that we believe is a reasonable expression of the legislature's will. In fact, it is very, very similar to the standards which the supreme court has been adopting. It does provide for some extra reporting requirements on judicial timeliness, both for the benefits of the electorate and for the benefit of the legislature as it's working on the annual budget. Number 1094 MR. CHRISTENSEN continued: The issue of the six-month rule has come up. ... As Senator Donley noted, the rule has been on the books since 1959. Before any judge or magistrate - we have 99 judges and magistrates - can get a paycheck, every two weeks they just sign this one affidavit that they have nothing before them that's ready for a decision to be made that has been languishing for more than six months. Because the supreme court and the court of appeals are committees, the rule applies to the member who is assigned the job of writing the majority opinion. That opinion has to be out in six months; however, the full opinion may not be released for some additional length of time because it is subject to negotiation and revision by the other majority members. After the majority opinion is finished, and only then, can a dissent be written. And then, typically once the dissent is written, the majority opinion is redrafted to answer the dissent. Right now, we have about 20,000 state employees, and the 99 judicial officers are the only ones who have their paychecks withheld if they are behind on their work. Now, I work two hats. I'm the deputy director, an administrator, and as an administrator I like the six- month rule because it keeps the cases moving. As a lawyer, on the other hand, and the person who serves as a general counsel for the institution, I do believe that the existing six-month rule is unconstitutional and wouldn't survive a legal challenge. It [has] been followed for 40 years as a matter of comity - comity being respect for the reasonable wishes of a coordinate branch government. The legislature is the funding authority; the legislature has expressed a desire that decisions be made within six months; the legislature has generally provided funding and resources adequate to get cases resolved within six months; therefore, it would be unreasonable not to respect the legislature's wishes. Last fiscal year we had about 150,000 new cases filed with the court system. During that fiscal year, courts disposed of 150,000 existing cases; that's a lot of cases. And during that year there were, I believe, 25 occasions when a judge or magistrate could not execute the affidavit and had their paycheck withheld for some period of time, until they could execute the affidavit. Twenty-five delays out of 150,000 cases under the performance measure that's been set by the legislature is really a pretty good record, but it's not perfect. You might ask, "Why is the supreme court imposing new time standards and training judges to be more efficient?" And pretty simply, the six-month rule applies to the period of time once a decision is ready to be made. There's a whole period of time in a case before [a] decision is ready to be made, when the lawyers are spinning their wheels, conducting discover [and] having hearings. ... We strongly believe that through better case management techniques and riding herd on the lawyers a little better, we can get that period of time down as well. Mr. Chairman, the basis for our view that the law wouldn't survive a legal challenge is what's happened in other states. There are about a half a dozen states or so that have a similar law to our six-month rule. It's been challenged three times - in Wisconsin, Montana, and Nevada. Each time, the law was thrown out for reasons which are directly applicable under the Alaska constitution. First, our constitution provides that a judge's compensation shall not be diminished during the term of office, except by a general reduction applicable to all state employees. Now, Mr. Chairman, as you know, money has a time value, and if you withhold a judge's salary for a period of time, you have the effect of diminishing it. I think the record ... was set about 15 years ago by an Anchorage judge; she was carrying an active caseload of 800 cases, and she had one case that was delayed beyond six months, ... and she had her paycheck withheld for over four months. It is sort of difficult to argue that that didn't have the effect of diminishing her salary during the course of the year. Number 1314 MR. CHRISTENSEN continued, stating: Second, under our constitution the supreme court is charged with administering the judicial branch, not the legislature. The six-month rule is really sort of a micromanagement that goes to the very heart of the supreme court's authority to administer our branch. It applies to the work of every judge, every day, in every case. Mr. Chairman, there is also a whole line of cases from other states in which the legislature has timelines for courts to conduct themselves ... but has not put the penalty of withholding paychecks. There's about a dozen of those cases and with almost unanimity - I think with one exception - those cases hold that legislatures can't set those timelines. There is a rule of constitutional law that one branch of government can't set a timeline for another branch to carry a constitutional function. This rule is generally invoked to protect the executive or the legislature from court orders, but rules like this do cut both ways. Notwithstanding our belief that the current law is probably unconstitutional, you've never heard us come into the legislature and complain about it. And I would suspect that none of you have ever been approached by your local judge and heard complaints about it. We do hear grumbling from time to time in court administration, ... and our answer [is] always the same: "If you don't like the law, file a lawsuit. But until you file a lawsuit and get it thrown out, get your cases done and get your affidavit in if you want a paycheck." Our goal, I think, is to make sure that circumstances don't arise which would cause 1 of the 99 individual judicial officers to decide to file a lawsuit to throw out the six-month rule. In the states where it has been thrown out, the lawsuits have always been brought by individual judges who were unhappy that their check was withheld, never by the supreme court or the court system as an institution. This bill in its current form eliminates all those things which we believe might have resulted in a legal challenge to the existing six-month rule. CHAIR ROKEBERG asked whether [there could be a legal challenge] if [judges] decide to do so based on constitutional issues. Number 1440 MR. CHRISTENSEN responded that they could if they wanted to; however, he suspects most won't because they believe they have adequate resources. REPRESENTATIVE BERKOWITZ asked whether the court system has the authority to impose its own sanctions on its membership. MR. CHRISTENSEN answered that Wisconsin threw its version of the six-month rule out; the supreme court, in its opinion, struck down the six-month rule but adopted a court rule that was very similar. REPRESENTATIVE JAMES remarked that she wishes [the committee] would do that, because this language doesn't seem proper. However, she agrees "they ought to pull us out of the fire" and put in a court rule. She asked Mr. Christensen whether it will be more effective to have information in the election bulletin. MR. CHRISTENSEN responded that [the Alaska Court System] does not oppose that. He said he could provide the list of the 25 times judges had their paychecks withheld last year; that has always been a public record. REPRESENTATIVE JAMES remarked that she is willing to support that because she thinks it is important for people to know. Number 1653 REPRESENTATIVE BERKOWITZ stated that it seems to him [the legislature] is running afoul by requiring the court officers to insert information about their salary warrants in the election pamphlet. CHAIR ROKEBERG said there could be a debate in terms of power, which resides in the legislature, to establish election statutes and how elections are conducted. He said that would even strengthen the position. REPRESENTATIVE BERKOWITZ asked whether [the legislature] would require any publication, for example, of APOC (Alaska Public Offices Commission) violations or ethics convictions in the legislature. REPRESENTATIVE JAMES responded that there is a difference between putting it in the election pamphlet and putting it on the ballot. CHAIR ROKEBERG stated that according to correspondence from the Alaska Judicial Council requesting the information in order to perform their job, he thinks it is legitimate. Number 1770 MR. CHRISTENSEN noted that Bill Cotton from the Alaska Judicial Council has said he is going to put this on their web site along with the other information. REPRESENTATIVE BERKOWITZ, in reference to the election pamphlet, stated that the judicial officers are bound by some strict ethical requirements about what they can and can't say, in terms of their ability to run elections. He asked whether it would be permissible for a judicial officer who was required to put this information in an election pamphlet to offer an explanation. MR. CHRISTENSEN responded that he didn't know. Number 1821 SENATOR DONLEY remarked that they do have the opportunity to respond. CHAIR ROKEBERG asked whether, if there is a charge made in public during the course of the election, the judge has a right to respond. MR. CHRISTENSEN responded that once a campaign committee has formed, a judge has the right to raise money and respond. SENATOR DONLEY remarked that he thinks a judge has the right to respond on his or her own. MR. CHRISTENSEN stated that there is a very strict code of judicial ethics that restricts a lot of what a judge is able to say about a case that's pending or impending in any court of the state. For example, if a judge has handled a case and there are charges against him or her in that case, the judge can't publicly make certain comments while it's still pending in the supreme court. CHAIR ROKEBERG remarked that if it were printed in the pamphlet that [the judge] did not receive his or her warrants a certain number of times, the judge should have the right to respond. He asked whether it is because of "standing" issues that this hasn't been challenged before. Number 1930 MR. CHRISTENSEN responded that a judge would have standing to challenge; so, probably, would the institution. However, he didn't know whether a member of the public would have that power. The only people who suffer any financial hardship are the 99 judicial officers. Logically, they're the only ones who would be willing to spend the money to be relieved of the burden. SENATOR DONLEY informed the committee that he is willing to take advice from the court system as far as the effective date. CHAIR ROKEBERG asked Mr. Christensen, "What's the burn rate on your case backlog?" MR. CHRISTENSEN answered that there is nothing mandatory about the case backlog in [the bill]. CHAIR ROKEBERG asked whether this should be in effect for the next election. MR. CHRISTENSEN responded that since it's now more advisory than mandatory, he believes it would be fine to start the beginning of next year. REPRESENTATIVE JAMES made a motion to adopt Amendment 1, on page 6, line 11 [to change the effective date to] January 1, 2002. Number 2034 REPRESENTATIVE BERKOWITZ objected. SENATOR DONLEY said he didn't have any objection to the date. MR. CHRISTENSEN remarked that he wouldn't have any objection. REPRESENTATIVE BERKOWITZ explained that his objection to the bill is not because of its subject, but is based on his respect for the separation of powers. REPRESENTATIVE MEYER stated that the administration has said it is OK with this date; if that weren't true, he would agree with Representative Berkowitz. REPRESENTATIVE BERKOWITZ remarked that he doesn't always agree with the administration. CHAIR ROKEBERG pointed out that it is not the administration but the courts. He commented that he thinks if this bill merits consideration by the legislature, it should be enforced for the next election. Number 2148 A roll call vote was taken. Representatives Coghill, Meyer, James, and Rokeberg voted in favor of Amendment 1. Representatives Berkowitz and Kookesh voted against it. [Representative Ogan was absent.] Therefore, Amendment 1 was adopted by a vote of 4-2. Number 2155 REPRESENTATIVE JAMES moved to report CSSB 161(FIN), as amended, out of committee with individual recommendations and the accompanying zero fiscal note. REPRESENTATIVE BERKOWITZ objected. He stated that he thinks [the legislature] is violating the separation of powers by compelling the judiciary to do something. He said he'd be interested in hearing how this action is not a violation of the separation of powers. CHAIR ROKEBERG responded that the administration of the elections is in purview of the legislature, which is the primary reason [why this is not a violation of the separation of powers]. He said he thinks the public has the right to know this information. REPRESENTATIVE BERKOWITZ remarked that he doesn't dispute that; however, he is disputing that the legislature is compelling not only information about elections, but that the court system and the judicial officers must file affidavits. He said he thinks it is an inappropriate intrusion of the legislature on matters that should be left internally to the judiciary. REPRESENTATIVE JAMES noted that this has been existing law since statehood, and she doesn't think [the committee] should be discussing that portion of it. REPRESENTATIVE BERKOWITZ responded that there was an indication that it is unconstitutional, and it is only for the sake of comity that the courts have not pursued an objection. Number 2248 A roll call vote was taken. Representatives Coghill, Meyer, James, and Rokeberg voted in favor of moving CSSB 161(FIN), as amended. Representatives Berkowitz and Kookesh voted against it. [Representative Ogan was absent.] Therefore, HCS CSSB 161(JUD) was reported from the House Judiciary Standing Committee.
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