Legislature(2001 - 2002)
04/25/2001 09:11 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 161(JUD)
"An Act relating to the withholding of salary of justices,
judges, and magistrates; relating to prompt decisions by
justices, judges, and magistrates; and relating to judicial
retention elections for judicial officers; and providing for
an effective date."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Donley testified this bill amends the current timeframe
guidelines governing when the judicial branch must issue decisions
in court cases. He detailed statute in place since statehood that
requires judges and justices to produce a proposed decision within
six months of the last argument on a case. He noted that there is
no time requirement for rendering a final decision and as a result,
several cases have been pending for over two years and one case for
over three years.
Co-Chair Donley asserted, "justice delayed is justice denied" and
that two years is too long for Alaskans to wait for a decision from
the Supreme Court.
Co-Chair Donley explained this legislation would add another "six-
month tier" to the existing system to hold multi-judge courts
accountable for issuing "reasonable decisions within a reasonable
amount of time." He noted an additional two months would be allowed
in times when a justice vacates the panel and a new justice is
appointed. He stated citizens could therefore expect a decision
within one year, or 14 months if there was a change in panel
membership, after the completion of all arguments and pleadings in
a case. He surmised this is more than an adequate amount of time.
Co-Chair Donley shared that the position of the judiciary branch is
that the existing law is unconstitutional. The reason, he said, is
because it is improper for the legislature to set such deadlines.
However, he stressed this law was established at statehood and has
been followed since that time, which sets a precedence.
Co-Chair Donley also noted Section 1 of the legislation adds to the
existing law that provides the content of the Official Election
Pamphlet (OEP). He shared that the current procedure designates a
page in the OEP detailing various information about each judge up
for retention confirmation. He stated this legislation requires the
voter's guide to also include information as to whether or not a
judge has complied with the timeframe requirements as specified in
this legislation.
Co-Chair Donley explained the process of having a judge complete a
salary warrant each pay period indicating whether the judge is in
compliance with that law. He stated that if the judge is not in
compliance, the salary is withheld. He noted there are currently
some judges that are not getting paid under the existing statute.
He surmised the public should have knowledge of this when deciding
whether to retain a judge.
Senator Olson pointed out it actually takes longer than six months
to appoint and confirm a new judge. Therefore he surmised the
additional two months for multi-paneled courts would be inadequate.
He asked how the deadline would be justified when there is an even
number of Supreme Court justices seated.
Co-Chair Donley responded it would be an issue only if there were a
significant period of time a seat was vacant. He stated new
justices are appointed "fairly promptly". Regardless of this, he
pointed out, the court can issue decisions with only four members
seated. He continued that in this instance, there would only be a
problem if the court deadlocked in a 2-2 vote. He posed a scenario
of a court that took the entire six months allowed to issue a
preliminary ruling and after six more months passed a member left
the bench without a final ruling issued and the remaining four
justices were tied in their opinion. He surmised the statistical
probably of this worst possible scenario was small. He stated if
this were a concern, he would support adding another month on the
extension, giving the court a possible nine months in which to
render a decision if one member left the bench during
consideration.
Co-Chair Kelly noted that current law already applies to these
situations.
Co-Chair Kelly asked the length of time it could take for a court
to render a final decision if there were a vacancy during the
consideration.
Co-Chair Donley replied the governor could appoint a new justice
within a month, leaving one month for the new court to make a
decision.
Senator Ward noted that candidates for public office are given an
opportunity in the voter's pamphlet to explain, "something we've
done or not done". He asked if judges up for retention have the
same option and could therefore explain why their salary was
withheld.
Co-Chair Kelly replied that the judges do make statements printed
in the voter's guide.
Co-Chair Kelly referred to Co-Chair Donley's statement that the
courts consider the existing law unconstitutional and asked for an
elaboration.
Co-Chair Donley explained that the administrator of the court
system, not speaking for the Supreme Court, has taken the position
that the existing law is a violation of the separation of powers.
He noted that neither the Supreme Court nor the Attorney General
have issued opinions on the matter.
Co-Chair Kelly asked how many other states have similar laws.
Co-Chair Donley was unsure, but stated that at least two courts in
jurisdictions outside Alaska found similar laws to be infringements
of the separation of powers. He stated other courts have upheld
statutes withholding legislators' salaries in the case of a failure
to produce a budget within a specified time period. He noted the
inconsistencies between a court ruling in favor of withholding
legislators' salaries, but ruling as unconstitutional, the
withholding of judges' salaries.
Co-Chair Kelly commented in defense of Alaska's court system,
informing there is no choice as to which cases are accepted. He
stated that the caseload is therefore higher in Alaska then in
other states.
Co-Chair Donley responded this is one of the arguments raised by
the court administrator.
CHRIS CHRISTENSEN, Deputy Administrative Director, Alaska Court
System, testified the purpose of this legislation is to encourage
timeliness and eliminate unnecessary delays in decision-making and
minimize delays. He assured that the Chief Justice and other
members of the Supreme Court share this concern and have been
taking "major steps" in the last few years to address timeliness
issues.
Mr. Christensen detailed that in the previous year, the Supreme
Court adopted very detailed time standards for trial courts. He
defined a time standard as a quantifiable goal for the delivery of
court services and noted that different time standards are adopted
for different types of cases. He pointed out the Alaska Court
System computer system is antiquated, but the intent is to start
issuing quarterly reports to the legislature later in the year on
the achievement of these time standards.
Mr. Christensen also noted that the previous October federal funds
were used to train all judges on case management techniques. In
addition, he said, the judicial branch established a mentoring
program so the judges who are particularly efficient in managing
their caseloads could advise those who are not and those who are
new to the bench.
Mr. Christensen reminded the Committee the Chief Justice announced
during her State of the Judiciary speech, that the Supreme Court is
also committed to shortening times for appellate cases. He shared
that approximately two weeks before this bill was introduced, the
Supreme Court did adopt time standards for appellate court cases
and new procedures for flagging and monitoring cases that are being
delayed so that individual cases don't languish.
Mr. Christensen emphasized this is very unusual and that while it
was common in other states for the Supreme Court to adopt time
standards for the trial courts, it is "almost unheard of" for the
Supreme Court to adopt time standards for its own operations.
Mr. Christensen summarized that timeliness is an issue requiring
attention and that the Alaska Court System has been actively taking
steps to address it. He expressed, "We're optimistic that we'll see
continued improvements. That being said, the court system does
strongly oppose SB 161."
Mr. Christensen stated that because the Supreme Court and the Court
of Appeals are actually committees, the six-month rule operates
differently for them. He explained how a judge or justice seated on
one of these courts is assigned to the task of authoring the
majority decision and has six months to do so. However, he
stressed, the opinion itself is subject to negotiation and revision
by the other majority members and is subject to having a dissent
written, all of which may take additional time.
Mr. Christensen told how this law dates to 1959, and that every two
weeks since statehood, every judicial officer in the state, from
the Supreme Court down to the magistrates, has to sign an affidavit
before they get a paycheck. He pointed out there are over 20,000
state employees that all have jobs to do and that this is the only
group of state employees who have paychecks withheld if they could
not certify they are not behind on their work.
Mr. Christensen affirmed that as Senator Donley pointed out, the
court administration view is that the existing law is
unconstitutional and would not survive legal challenge. Mr.
Christensen asserted it has been followed for 40 years, not because
it is constitutional but simply as a matter of respect for the
reasonable wishes of a coordinate branch of government. He stated
the legislature is the funding authority and that the legislature
has expressed a desire that cases are resolved within six months
and also that the legislature historically has provided a level of
funding through the judiciary branch to handle these cases in that
timeframe. Therefore, he concluded, it would be unreasonable to not
respect those wishes.
Mr. Christensen detailed that in the previous fiscal year there
were approximately 150,000 new cases filed in the court system.
That same year, he informed, about 150,000 old cases were disposed,
which he commented is a lot of cases. Mr. Christensen continued
that during the previous year there were 25 occasions in which an
individual judge or justice could not sign the pay affidavit and
subsequently had a paycheck withheld. He surmised that 25 delays
out of 150,000 cases, under the performance measure established by
the legislature, is a fairly good record. He predicted the average
time period would still be reduced with the implementation of the
new time standards.
Mr. Christensen explained the current law would not survive a legal
challenge is based on events in other states. He estimated there
are six states that take a judge's paycheck if assigned work is not
completed within a certain amount of time. He added that such laws
have been challenged not by the court system, but by individual
judges, in three states: Nevada, Montana and Wisconsin. Each time,
he stated, the law was thrown out for reasons directly applicable
to the Alaska Constitution, which he described as follows.
Mr. Christensen elaborated the first issue that, Alaska's
Constitution, the constitutions of the three aforementioned states,
and most other state constitutions, provide that a judge's
compensation shall not be diminished during the term of office
except by a general law applied to all state employees. He
remarked, "Money has a time value. When you take away a judge's
paycheck for a period of time that has the effect of diminishing
it." He cited the record set 20 years ago by an Anchorage judge,
who was carrying an active caseload of 800 cases, and because of
one divorce case involving a court employee, that judge had a
paycheck withheld for over four months. Mr. Christensen asserted,
"It's difficult to argue that holding somebody's paycheck for more
than four months is not a diminishment as prohibited by the
constitution."
Mr. Christensen next detailed how, under our state constitution,
the Supreme Court and not the legislature is charged with
administering the judicial branch. He commented the six-month rule,
as currently in effect is, "a form of micro-management 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. Christensen told the Committee there are a number of court
cases from other states in which the courts have considered the
general question of whether the legislature could set timelines for
the courts to do their work. He noted these are cases in which the
legislature sets timelines but that they do not involve the
withholding of a judge's paycheck. He stated the majority is
"overwhelming, about 15 to one," that setting timelines for the
judiciary is a "violation of fundamental separation of powers
doctrine." He explained there is a rule of constitutional law that
one branch can't set a timeline for another branch to carry out a
constitutional function. Deciding cases, he informed, is a
constitutional power of the courts not a statutory power. He noted
this rule is generally invoked to protect legislative and executive
branches from timelines set in court cases although "rules like
this work both ways."
Mr. Christensen clarified that notwithstanding the court
administration's longstanding belief that the existing law is
unconstitutional, the court system as an institution, has never
complained to the legislature. He noted that he does receive
complaints occasionally from individual judges but, "our answer has
always been the same: if you don't like the law, then file a suit.
Otherwise comply with it."
Mr. Christensen asserted SB 161 is too far reaching and is likely
to result in a challenge to the underlying six-month rule. He
surmised that given the case law in other states, the rule would be
struck down. He shared that as an administrator, he supports the
six-month rule as it currently pertains to the trial courts, but
does not support the expansion to apply to the Supreme Court and
the Court of Appeals. He explained how if the assigned justice
fails to present a majority decision within six months and the full
court is unable to release a final decision within the 12 months
allocated in the bill, all members of that court lose their
paycheck. In essence, he stated, an individual judge or justice
could be performing duties in a timely manner yet have a paycheck
withheld if a colleague has taken too long. He stressed that there
are "serious constitutional problems" involving both the equal
protection clause and the impairment of contract clause, which
relates to taking one state employee's paycheck because a different
state employee has not done their work on time.
Mr. Christensen stated, "Constitutional issues aside, this is an
issue of fundamental fairness. The bill proposes to take a paycheck
from someone because of circumstances beyond their control. A
person could be performing the duties of the office diligently and
efficiently and in a timely manner and still be deprived of a
paycheck because of something someone else didn't do." He relayed
an instance where a justice was hospitalized and the progression of
cases was delayed as a result.
Mr. Christensen surmised the question ultimately is what harm this
bill is trying to prevent. Currently, he reported, there are 465
cases in front of the Supreme Court of different types and in
various stages of completion. Of this amount, he disclosed, 20
cases are more than one year old, which he calculated as less than
five percent. He assured he did not want to make excuses and that
the Chief Justice agrees that 20 overdue cases is too many.
Mr. Christensen stressed there is a reason the court does not
always resolve cases as quickly as desired. He stressed that,
unlike most Supreme Courts, the Alaska Supreme Court is not a
Certiorari (cert) court with regards to the civil caseload. He
defined cert court as having discretion as to reject cases, and
thus control the caseload. In contrast, he explained, the Alaska
Supreme Court must hear and decide every civil case that is
appealed to it, regardless of the merits of the case and regardless
of the significance of the issues to the public at large.
Mr. Christensen gave comparisons of the caseloads of several cert
courts to the Alaska Supreme Court. He stated the US Supreme Court
is a cert court with nine justices to share the workload of issuing
86 written opinions in the previous year. He noted this is the
number of cases the US Supreme Court determined it could decide in
the time period. He then pointed out three states close to Alaska:
also have cert courts. He listed the California Supreme Court, with
seven justices, issued written opinions in 88 cases during 1999. He
pointed out this is an average of 13 opinions per justice. He
continued with the Oregon Supreme Court noting the seven justices
issued 98 opinions during the same time period at 14 per justice,
and the Washington Supreme Court with nine judges, issued opinions
on 148 cases at 16 per justice. In contrast, he informed that the
Alaska Supreme Court with only five members issued written opinions
on 153 cases, at an average of 31 per justice, which he stressed is
twice the number of written opinions issued by the other courts in
that are able to control the workload.
Mr. Christensen asserted that in order to guarantee that all cases
leave the Alaska Supreme Court within 12 months, the court would
need to change to a cert court, as has been done in the
aforementioned states. He explained the process of creating a new
intermediary court of civil appeals, as has been done in the other
three states. He pointed out the legislature established such a
court about 20 years ago to address criminal cases because the
state Supreme Court caseload became too great.
Mr. Christensen noted the Alaska Court System fiscal note for this
bill reflects the cost establishing an intermediary court. He
qualified that the legislation has an effective date of 2004 so
this court would not need to be created immediately. He surmised it
is unlikely the legislature would expend the money to establish a
new appeals court to speed up the Supreme Court's caseload when
only less than five percent of that caseload is over one year old.
Mr. Christensen shared that the 20 cases open after one year
typically exist because they are more complex, involve more issues
and are more likely to have a split decision, which he stated
require dissenting opinions to be written after the majority
opinion is issued. At that time, he continued, the majority opinion
is rewritten to include a response to the dissenting opinion.
Mr. Christensen added that some overdue cases exist because of a
turnover in the court. He pointed out that three seats on the
Alaska Supreme Court turned over in the last five years and that
unlike trial courts, the existing caseload is not reassigned to
other courts while a seat is vacant or a justice has an illness. He
stressed that this legislation would not eliminate these problems.
He asserted, despite the court's best efforts and despite its
success in getting the average case resolved in less time, there
would always be a few cases that take longer than a year.
Mr. Christensen remarked if SB 161 were in statute in fiscal year
2000, no member of the court would have received a paycheck for the
entire year in spite of the number of written opinions issued at
twice the rate of other states. He asserted if the bill became law
today, all members of the Supreme Court would lose their paycheck
immediately.
Mr. Christensen opined the matter is made worse with the inclusion
of Sections 3 and 5 of the legislation, which changes the way in
which the six-month rule is calculated. He detailed that currently
when a case goes before the Supreme Court or the Court of Appeals,
the parties have the option of requesting an oral argument. He
described that currently when the court hears an oral argument, a
conference is held immediately following the arguments, a vote is
taken and the opinion is assigned, whereby the six-month timeframe
begins. If no oral argument is requested, he continued the opinion
is assigned at the point and time when an oral argument would have
occurred. He stated this means all parties are treated equally,
whether or not an oral argument is presented. Under the bill if no
oral argument is requested the six-month rule begins immediately,
which results in the loss of two of the allocated six months.
Mr. Christensen noted there are technical problems with the bill,
but stated he would not address these specifically because fixing
them would not make the existing law constitutional and would not
resolve the constitutional problems with the bill itself.
Mr. Christensen reiterated the bill is not constitutional and that
this has not been refuted in two hearings of the Senate Judiciary
Committee nor has the Division of Legislative Legal and Research
Services issued an opinion to the contrary.
Mr. Christensen continued that in addition of the
unconstitutionality of the legislation, the bill makes statutory
changes that "are simply unfair," by punishing people who have
completed their work. He hoped these two facts would be enough to
give the Committee pause. If not, he requested the Committee
perform a risk analysis. He shared that as a court administrator
who does not want to lose the existing six-month rule, he has done
a risk analysis and found that if this bill were to become law and
survived challenge, the only achievement would be 20 cases resolved
more quickly. He warned if the bill became law and was struck down
under challenge, the existing six-month rule for all courts would
be lost. He surmised that with the removal of the six-month rule,
"human nature" would dictate that the progression of the annual
150,000 trial court cases would slow considerably.
Mr. Christensen concluded by stating, "I've done the math and quite
frankly, SB 161 scares me."
Co-Chair Donley asked what would be the position of the court
administration if the legislature adopted state policy that
appellate courts should produce their opinions within one year. He
pointed out this policy could be violated by the courts, but would
serve as a guideline.
Mr. Christensen responded legislatures set many statutory policies
for the courts that establish specific timelines for individual
types of cases. He noted that many of these laws have been
overturned in other states and that no challenge has been brought
for the Alaska statutes. He deemed SB 161 as setting policy,
although the courts have followed legislative policy for several
years.
Co-Chair Donley restated his suggestion adding the statute would
stipulate guidelines but that salary would not be withheld as a
penalty. He explained this would set a goal for the courts to
achieve and provide notification in the voter's guide if the
guidelines are not followed.
Mr. Christensen replied the legislature has authority to set such
policy and that as the funding authority it is reasonable make
expressions of policy to the Alaska Court System. He commented that
when the legislature expresses a policy and provides adequate
funding so the courts could meet the guidelines, he expected the
courts to "make a sincere effort" to follow them.
Co-Chair Donley requested the court administration's position on
Section 1 of the bill regarding publication of a judge's compliance
with the guidelines in the voter's pamphlet.
Mr. Christensen responded there are two types of information the
bill instructs the courts to provide, how many times a judge has
had a paycheck withheld info on how many times judge has paycheck
withheld and a breakdown of the amount of time each judge has taken
to render a decision in each case. He detailed the salary
information is already compiled and available upon request and that
the legislature could require it to be printed in the OEP. He noted
however, the Department of Administration has advised that release
of this information violates the state personnel laws, although the
court administration disagrees. He addressed the breakdown
requirement emphasizing the court's current computer system could
not accommodate this task. He noted the new system could
"conceivably" accomplish this once it is online, which would be in
three years. He informed that judges "get dozens and dozens of
orders across their desk every day and most of them are no-brainers
that you sign a minute after you've read it." He was unsure whether
this collection of information would be of any value since most
items are completed within the first four-month breakdown.
Co-Chair Donley suggested holding the bill in Committee and working
with the court system regarding adopting a state policy providing
that citizens are entitled to a decision within one year and
inclusion of each judge's success on this in the voter's guide. He
noted judges would have an opportunity to offer a response and
explanation in the voter guide individual statements. He also
wanted to clarify the Department of Administration no longer denies
the public and the judicial counsel access to this information,
which he stressed is part of the judge's constitutional
responsibility. He also wanted to address Section 2, part 2 of the
bill and possibly remove it.
Co-Chair Kelly ordered the bill HELD in Committee.
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