Legislature(1995 - 1996)

01/29/1996 01:05 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 Number 0770                                                                   
 CHAIRMAN PORTER brought HB 437 before the committee and welcomed              
 Chris Christensen to introduce the bill.                                      
 CHARLES S. ("Chris") CHRISTENSEN III, Staff Counsel, Office of                
 Administrative Director, Alaska Court System, presented the sponsor           
 statement for HB 437.  He said the bill, introduced at the request            
 of the Alaska Supreme Court, was that court's highest priority for            
 MR. CHRISTENSEN explained that HB 437 created a new Judicial                  
 Officers Compensation Commission to replace the State Officers                
 Compensation Commission for purposes of determining the salaries of           
 justices and judges.  The existing commission recommended                     
 compensation levels for certain state officers, including judges,             
 to the legislature.  Its recommendations had not generally been               
 implemented by the legislature, he said, for reasons unrelated to             
 their merits.  In contrast, he said, the commission created by HB
 437 would have the authority to actually set judicial salaries,               
 subject to both legislative appropriation and possible rejection by           
 the legislature.                                                              
 MR. CHRISTENSEN said currently there were nine jurisdictions,                 
 including the federal government, operating some form of                      
 compensation commission with the authority to actually set salaries           
 for public officers including judges.  The commissions existed to             
 see that fair decisions were made regarding compensation of certain           
 government officials and to reduce political battles revolving                
 around such salary decisions.                                                 
 MR. CHRISTENSEN explained that the current system in Alaska had               
 historically resulted in salary adjustments for judges being lumped           
 together with adjustments for legislators, the governor and his               
 commissioners.  This resulted in decisions about judicial salaries            
 being subject to political decisions that were irrelevant.  An                
 essential goal of the court system, as well as government, he said,           
 was to attract or retain highly qualified attorneys.  Achieving               
 that goal required salaries commensurate with the qualifications              
 and responsibilities of the office of justice or judge.  The                  
 judiciary, he added, had not received a cost-of-living adjustment             
 since 1991; in the same time period, every other state has granted            
 at least one salary increase to its judges.  He said Alaska was now           
 in the bottom one-third of the states in terms of judicial                    
 salaries.  Furthermore, Alaska Superior Court judges had a far                
 greater workload than federal judges.                                         
 MR. CHRISTENSEN pointed out that one impact of eroding judicial               
 salaries was already being seen, with several judgeships coming               
 vacant in the past year.  The percentage of private attorneys                 
 versus public attorneys applying for those positions was declining,           
 he said.  He preferred to see a balance.                                      
 MR. CHRISTENSEN explained that the commission would have five                 
 members appointed by the governor, including a business executive;            
 a person with personnel management experience; a representative of            
 a nonpartisan voters' organization; an economist; and an attorney.            
 Every other year, the commission would review the compensation of             
 justices and judges.  After holding required public hearings to               
 discuss its findings, it would submit a report to the legislature.            
 If the commission recommended a change of compensation, it would              
 submit an order with the report.  An order changing the                       
 compensation would take effect unless a bill disapproving the order           
 in its entirety was enacted into law within 60 days after the order           
 was submitted to the legislature.  Unless disapproved, an order               
 increasing compensation would be subject to funding through                   
 legislative appropriation and would not take effect until that                
 appropriation was made.  Unless disapproved, an order decreasing              
 compensation would take effect on the day the legislature passed a            
 general law, applying to all salaried officers of the state,                  
 decreasing compensation.  That, he said, was the constitutional               
 requirement for reducing a judge's salary.                                    
 MR. CHRISTENSEN concluded by referring to page 4, line 14; he said            
 an equivalent list of standards for determining a fair salary did             
 not exist in the statute regulating the current commission.                   
 Number 1113                                                                   
 REPRESENTATIVE GREEN mentioned the significantly higher workload of           
 Alaska Superior Court judges, compared to that of federal judges.             
 He asked how the Alaska Supreme Court workload would compare.                 
 MR. CHRISTENSEN replied that it varied from court to court.  In               
 Anchorage, where most of the superior court judges were, the                  
 average caseload was 800 cases per judge.                                     
 REPRESENTATIVE GREEN clarified that he was asking about the supreme           
 Number 1186                                                                   
 MR. CHRISTENSEN responded that he did not have the statistics with            
 him.  He said they were very busy.  He added that the court of                
 appeals had been created some years before because the supreme                
 court was considered overworked at the time.  He added that                   
 justices and judges in the supreme court, court of appeals and                
 superior court had similar salaries in Alaska, within 5 percent of            
 each other.  He believed there was more variation among federal               
 Number 1205                                                                   
 REPRESENTATIVE GREEN referred to the zero fiscal note in the packet           
 and said he presumed that if the commission were established, the             
 salaries would increase.  He asked for an explanation.                        
 MR. CHRISTENSEN said the cost of the bill was the cost to run the             
 commission.  There was no cost to the court system for that, he               
 said.  The Department of Administration would be paying per diem to           
 the five members of the commission for the period of time when they           
 were meeting.  He said there needed to be a fiscal note attached in           
 the House Finance Committee.  He added that there was no certainty            
 that the commission would increase salaries.  However, if the                 
 commission increased salaries and those increases came before the             
 legislature, the legislature still had to appropriate the money.              
 The legislature did retain final control.                                     
 Number 1250                                                                   
 REPRESENTATIVE BUNDE commented that he had noticed that the zero              
 fiscal note seemed inappropriate.  A commission would certainly               
 have a cost.  He added that he was not disagreeing with the goal of           
 having judges with real life experience; he thought Alaska could              
 use more of those.  He noted that there had been recommendations              
 for increased salaries that the legislature had not funded.  He               
 asked how creating the new commission would impact that, because it           
 would still need to be funded.                                                
 Number 1293                                                                   
 MR. CHRISTENSEN replied that the current commission sent a                    
 recommendation to the legislature, which then had to act in an                
 affirmative way in terms of introducing a bill and changing a                 
 statute.  With the new system, the commission would send an order             
 to the legislature that would have to be rejected within a                    
 specified period of time if they wanted to negate it.  To affirm              
 it, only an appropriation would be required.                                  
 MR. CHRISTENSEN explained that when the current commission sent in            
 its orders, those related to legislators and the governor as well,            
 creating political issues.   With the new commission, however, the            
 issues revolving around legislators, the governor and his                     
 commissioners would be separated from salary considerations for               
 judges and justices.                                                          
 Number 1350                                                                   
 REPRESENTATIVE BUNDE commented that he saw two issues:  1)                    
 establishing a commission; and 2) the mechanism for approval by the           
 legislature.  He said he was uncomfortable with the idea of getting           
 a raise if there were no vote against it.  He asked how this                  
 related to HB 236, which was an attempt to limit salaries.                    
 Specifically, he wanted to know if judges were being exempted from            
 HB 236.                                                                       
 Number 1300                                                                   
 MR. CHRISTENSEN replied no.  He said the United States Supreme                
 Court had considered the issues raised by this legislation in the             
 federal context; they had ruled that the only way a legislature               
 could delegate authority to determine the salaries of public                  
 officers was if they retained ultimate control, for example, in the           
 form of the power of appropriation or the power of passing                    
 overriding legislation at a future date.  This bill, he said, gave            
 the legislature the power of that appropriation; furthermore,                 
 Alaska's constitution provided the Alaska State Legislature the               
 power of overriding legislation.  By law, one legislature could not           
 bind a future legislature.                                                    
 MR. CHRISTENSEN commented that if HB 236 or something similar                 
 became law, the legislature would still retain the ability to                 
 reduce judges' salaries at a future time.  However, the                       
 constitution said that in order to reduce a judge's salary, it had            
 to be reduced by the same percentage as the salaries of all other             
 officers of the state were being reduced.  Judges could not be                
 singled out.  He noted that this provision existed in almost every            
 state constitution, as well as the federal constitution.                      
 Number 1463                                                                   
 REPRESENTATIVE GREEN referred to Mr. Christensen's comments about             
 discrepancies in salaries.  He noted that the Alaska State                    
 Legislature had, some years prior, tried to increase its salaries             
 by about 40 percent; there had been a hue and cry about that.                 
 Representative Green asked whether Mr. Christensen anticipated that           
 if the commission were established, they would try to make parity             
 with salaries elsewhere quickly.  He wondered whether the states              
 with similar mechanisms had seen a big advantage in salaries.                 
 Number 1508                                                                   
 MR. CHRISTENSEN responded that he would not expect the commission             
 to recommend parity with federal judges.  One factor the commission           
 was required to consider, he said, was the cost to the state and              
 whether or not the state could afford it.  The legislature, he                
 added, would do that same second-guessing.  Most states did not pay           
 their equivalent judges at the same rate as for federal judges, he            
 clarified.  They paid higher than Alaska but lower than that.  Mr.            
 Christensen added that he would expect politics to be involved in             
 a large raise; that was the reason for the requirement of public              
 hearings.  With regard to other states, his own research indicated            
 that most other states with this process used it not only for                 
 judges but for their legislatures as well, in hopes of reducing               
 political battles over salaries.  He understood that it had been              
 relatively successful, at least at the state level, in reducing               
 those battles.                                                                
 Number 1593                                                                   
 REPRESENTATIVE GREEN asked if Mr. Christensen could estimate the              
 workload of the Alaska Supreme Court, compared to that of similar             
 courts in other states.                                                       
 Number 1610                                                                   
 MR. CHRISTENSEN replied that was difficult to answer.  Different              
 states had their court systems set up differently.  They had                  
 varying jurisdictions, numbers of cases and kinds of cases.                   
 Furthermore, other supreme courts had different numbers of members.           
 He said he believed Alaska's was the smallest.  He asserted this              
 meant its individual members worked more than members of larger               
 courts, as each member would write a certain number of cases.  Mr.            
 Christensen offered to gather some statistics.                                
 REPRESENTATIVE GREEN said Mr. Christensen had made a good point.              
 Number 1647                                                                   
 CHAIRMAN PORTER noted that magistrates seemed to be excluded from             
 consideration by the commission.  He asked what the thinking was              
 behind that.                                                                  
 Number 1658                                                                   
 MR. CHRISTENSEN explained that magistrates were not constitutional            
 officers appointed by the governor.  They were employees hired by             
 the court system.  A third of them were not even attorneys.                   
 Magistrates received substantially lower salaries than judges,                
 being Range 21 or less on the state pay scale.  Many worked half-             
 time.  Mr. Christensen added there was no problem getting highly              
 qualified applicants for magistrate positions with the amounts the            
 legislature had funded the courts to pay them.                                
 Number 1695                                                                   
 CHAIRMAN PORTER commented that in the establishment of a                      
 commission, in most cases there was a gubernatorial appointment and           
 a confirmation by the legislature.  He noted that second step had             
 been omitted and asked for the thinking on that.                              
 Number 1705                                                                   
 MR. CHRISTENSEN replied that he thought the legislation copied how            
 the current commission operated.  The Alaska Supreme Court                    
 certainly did not care how the commission was set up, he said.  Mr.           
 Christensen recounted an argument years before between the attorney           
 general and a legislative committee over whether or not, with this            
 type of commission, the legislature could be required to vote on              
 the membership.  He said he did not have the answer; however, the             
 supreme court did not object to it if the legislature wanted to               
 appoint the membership in a different manner or have them                     
 Number 1734                                                                   
 CHAIRMAN PORTER asked about the commission member who would belong            
 to a nonpartisan voters' organization.  He said he knew of only one           
 such organization and asked if Mr. Christensen knew of more.                  
 MR. CHRISTENSEN responded that the list was certainly subject to              
 change.  He said the current commission required that particular              
 member.  Although it might make sense when considering the                    
 legislature or other elected officers, he was not sure it made                
 sense for judges.  Mr. Christensen expressed that it was important,           
 however, for one of the five members to be an attorney.                       
 Number 1784                                                                   
 CHAIRMAN PORTER referred to the provision for public hearings.  He            
 said he saw no mention under AS 39.23.560 of consideration of the             
 public input, nor of the state's ability to pay the salaries.                 
 MR. CHRISTENSEN confirmed that with respect to considering the                
 public input, that was not in the list.                                       
 CHAIRMAN PORTER suggested it was perhaps included under item (12)             
 on page 5, line 8.                                                            
 MR. CHRISTENSEN referred to page 5, line 2, and pointed out that              
 the second half of item (9) related to the financial ability of the           
 state to meet the costs.  However, he said, Chairman Porter had               
 made a good point about putting the requirement for considering               
 public comment on that list.  The public comment, he thought, was             
 going to be highly relevant because these were public officers.               
 Number 1848                                                                   
 REPRESENTATIVE BUNDE asked whether Mr. Christensen was conveying              
 that the Alaska Supreme Court had either expressed concern about or           
 was unable to attract quality applicants.                                     
 MR. CHRISTENSEN responded that Alaska had a good judiciary; he                
 thought in terms of qualifications, it was the best Alaska had ever           
 had.  However, he said, there would eventually be a turnaround.               
 They were already seeing more public applicants as opposed to                 
 private applicants, the reason being, he said, that for most public           
 attorneys, this was either a pay raise or the same salary.  For               
 qualified private applicants, he said, it was usually a big pay               
 cut.  He said that when the court had received a pay raise in 1990,           
 that was their first raise in five years.  During the two years               
 before 1990, he said, the court had lost 20 percent of its members.           
 Many of those who left had commented that they needed to get back             
 into private practice to earn more money.                                     
 Number 1914                                                                   
 REPRESENTATIVE GREEN noted that the legislation applied to a                  
 commission to recommend judges' salaries.  He asked if that                   
 included just the judge or whether it filtered down through legal             
 advisors, clerks and so forth.                                                
 MR. CHRISTENSEN said absolutely not.  That would continue to be               
 done in the current method.  This legislation was just for supreme            
 court justices, judges of the court of appeals and judges of the              
 superior and district courts.  Approximately 55 men and women would           
 be affected.                                                                  
 Number 1960                                                                   
 CHAIRMAN PORTER suggested placing the word "comments" after                   
 "interests" in item (9), page 5, line 2.  It would then read,                 
 "interests [comma], comments and welfare of the public and the                
 financial ability of the state to meet the costs".                            
 MR. CHRISTENSEN agreed that would probably work well.                         
 Number 1988                                                                   
 REPRESENTATIVE GREEN offered an amendment to HB 437, inserting the            
 word "comments", with commas before and after, between the words              
 "interests" and the word "and" on line 2 of page 5.                           
 REPRESENTATIVE FINKELSTEIN noted that on page 3, line 28, it                  
 already said that the "commission shall give due regard to public             
 comments".  Although he saw no harm in it, he did not think the               
 amendment was necessary.                                                      
 Number 2035                                                                   
 CHAIRMAN PORTER advised that there had been a motion, which they              
 would call "Amendment Number 1, to add to page 5, line 2, the                 
 addition of `, comments' between the words `interests' and the word           
 `and' on that line."  He asked if there was an objection.  There              
 being no objection, Amendment Number 1 was passed.                            
 Number 2049                                                                   
 REPRESENTATIVE FINKELSTEIN said he had an amendment which he wanted           
 to offer; however, he was going to hold off on it.  He was                    
 interested in the issue of legislative compensation; he felt that             
 all the reasons HB 437 was good for judges applied to HB 437 being            
 good for legislators as well.  He said legislators, more than                 
 anyone, suffered from having to be involved in deciding their own             
 salaries.  He said he would work on the amendment.                            
 Number 2084                                                                   
 REPRESENTATIVE BUNDE commented that he certainly wanted the state             
 to have the best qualified judges possible, with real life                    
 experiences.  However, he expressed concern that pay raises would             
 become effective if the legislature failed to act.  He would prefer           
 action to be in the affirmative.  Further, he would like to see               
 legislative confirmation of commission members included in the bill           
 as well.  He felt HB 437 needed to be amended to include these.               
 REPRESENTATIVE BUNDE moved that HB 437 be moved from the House                
 Judiciary Committee, with the attached fiscal note and with a                 
 notation that it needed an additional fiscal note, with individual            
 Number 2137                                                                   
 CHAIRMAN PORTER recognized the motion to move the bill as described           
 and asked if there was an objection.  There being no objection, HB
 437 moved from the House Judicial Committee.                                  

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