Legislature(2001 - 2002)

04/12/2001 09:13 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE JOINT RESOLUTION NO. 22(JUD)                                                                                      
Proposing an  amendment to the Constitution  of the State  of Alaska                                                            
relating  to the  retention  elections for  justices  of the  Alaska                                                            
Supreme Court and judges of the superior court.                                                                                 
                                                                                                                                
                                                                                                                                
STEPHANIE  COLE,  Administrative   Director,  Alaska  Court  System,                                                            
testified  via teleconference  from  Anchorage,  indicated that  the                                                            
Alaska  Court  System  concurred  with  the position  taken  by  the                                                            
judicial council.  She  stated that the Alaska Court System believed                                                            
that  the proposed  shortening  of  the  periods  between  retention                                                            
elections  in the  resolution  would have  a serious  effect on  the                                                            
quality of justice  in the State of Alaska.  She explained  that the                                                            
merit selection  and retention system  currently in place  in Alaska                                                            
was  cited  quite  often  as  a  model  system  balancing   judicial                                                            
independence  and judicial  accountability.   It  was a system  that                                                            
preserved  the judges  ability  to make  decisions  impartially  and                                                            
without  undue political  pressure  against the  public's rights  to                                                            
hold the judges  accountable.  She  said that they really  felt that                                                            
judicial accountability  was enormously important  and was in no way                                                            
inconsistent with judicial independence.                                                                                        
                                                                                                                                
Ms.  Cole further  explained  that  the three  aspects  of  judicial                                                            
accountability    were    political   accountability,     decisional                                                            
accountability  and behavioral accountability.  She  noted that each                                                            
of those aspects was important  and each served a different purpose.                                                            
She stated  that political accountability  was accomplished  through                                                            
the retention election  process, which allowed the public to approve                                                            
judges.   Decisional  accountability  was  related to  the issue  of                                                            
whether a judge  was correct or incorrect  in a particular  decision                                                            
and it was  accomplished through the  appellate process as  the case                                                            
went up for appeal.  Behavioral  accountability would come into play                                                            
when judicial  misconduct was at issue  and it was provided  through                                                            
the judicial  discipline process.   She warned that when  they start                                                            
proposing to  shorten retention terms  in the way that SJR  22 would                                                            
do then they create a situation  where they start blurring the lines                                                            
between political  accountability  and decisional accountability  to                                                            
the detriment  of  the justice  system.   She pointed  out that  the                                                            
current retention  terms were in the  mainstream of retention  terms                                                            
around the country.                                                                                                             
                                                                                                                                
Ms. Cole further stated  that while their role as legislators was in                                                            
large  part  to  reflect   the  will  of  the  majority   and  their                                                            
constituents,  the role  of the judge  was to  protect the  minority                                                            
against  which the  will of  the majority  should never  be able  to                                                            
prevail.  She  indicated that the judge must apply  the law to a set                                                            
of facts without  regard to the political atmosphere  or the will of                                                            
the majority.   She noted that this was very difficult  and often an                                                            
unpopular  task, but  it was  enhanced  by the current  system  that                                                            
provided some protection  against a judge being punished politically                                                            
for  a  particular  decision.    She  urged  that  when  they  start                                                            
shortening  the period between retention  elections then  it becomes                                                            
more  likely  that  political  campaigns   would  be  waged  against                                                            
individual  judges  because of  a single  unpopular  decision.   She                                                            
explained that as campaigns  were mounted against judges then judges                                                            
could and would  respond with counter campaigns.   She noted that it                                                            
had become a serious public  concern throughout the country, because                                                            
it could  compromise  a judge's  ability  to rule  neutrally and  be                                                            
perceived as neutral.                                                                                                           
                                                                                                                                
                                                                                                                                
SFC 01 # 73, Side B 10:01 AM                                                                                                    
                                                                                                                                
                                                                                                                                
Ms. Cole  continued that  judges needed to  be evaluated at  regular                                                            
intervals  about how  they handled  all their cases  instead  of how                                                            
they handled  one or two  highly-visible cases.   She stressed  that                                                            
the  legal  system  commanded  allegiance  only  when  it  commanded                                                            
respect and it only commanded  respect when the public believed that                                                            
the  judges were  neutral.   She  expressed  grave concern  that  by                                                            
shortening  the period  between retention  elections  it would  also                                                            
discourage  qualified applicants  from seeking  judicial  positions.                                                            
She  noted that  judicial  salaries were  currently  dropping.   She                                                            
concluded that the Alaska Court System was opposed to SJR 22.                                                                   
                                                                                                                                
Senator Ward requested  clarification that Ms. Cole  had stated that                                                            
the role of  the state was to protect  the minority and the  role of                                                            
the legislature was to protect the majority.                                                                                    
                                                                                                                                
Ms. Cole clarified that,  generally, the role of the legislature was                                                            
to protect the rights of  the constituents or the majority, whereas,                                                            
the  primary role  of  a judge  was  to protect  the  rights of  the                                                            
minority  against  which  the  will of  the  majority  should  never                                                            
prevail.   She further clarified  that she  had not intended  to say                                                            
that the  legislature  did not  represent the  minority, but  rather                                                            
that it  was the  role of  the judge  to protect  the rights of  the                                                            
minority against infringements.                                                                                                 
                                                                                                                                
Senator  Ward  spoke  to the  sovereign  rights  of  the  individual                                                            
regardless of whether they were in the minority or the majority.                                                                
                                                                                                                                
Senator Leman  referred to Ms. Cole's  comment about Alaska  being a                                                            
model of the system.  He  argued that it was not really a model that                                                            
would get the most qualified judges.                                                                                            
                                                                                                                                
WILLIAM   COTTON,    Alaska   Judicial   Council,   testified    via                                                            
teleconference   from  Anchorage,   responded  to  Senator   Leman's                                                            
comments.   He  stressed  that almost  every  decision  made by  the                                                            
judicial council was unanimous.   He stated that the council opposed                                                            
SJR  22, because  they believed  it  would be  counterproductive  to                                                            
their goal  of encouraging judicial  excellence.  He echoed  some of                                                            
Ms. Cole's  comments.  He indicated  that the council urged  them to                                                            
think long  and hard before  upsetting the  system and vote  against                                                            
SJR 22.                                                                                                                         
                                                                                                                                
Co-Chair Donley  mentioned that 20 other states had  merit selection                                                            
retention laws  similar to Alaska.  He noted that  three of those 20                                                            
states  had  the same  retention  terms  proposed  by  SJR  22.   He                                                            
wondered if  that was also Mr. Cotton's  understanding.   He pointed                                                            
out that in Kansas  each community could choose whether  or not they                                                            
wanted to conduct a direct  election or use an appointment retention                                                            
system.   He said  that it  was a 50/50  split statewide.   He  also                                                            
referred to  Oklahoma and indicated  that two of the 20 states  that                                                            
allegedly had the same  system as Alaska, in fact, had a significant                                                            
number of their judges elected.                                                                                                 
                                                                                                                                
                                                                                                                                
AT EASE 10:19 AM/10:24 AM                                                                                                       
                                                                                                                                
                                                                                                                                
Mr. Cotton  explained that many of  the states nationwide  were very                                                            
different from Alaska in  that rather than having a statewide system                                                            
they had municipal courts,  county courts and state courts.  He said                                                            
that the  courts in the United  States had  three basic systems:   a                                                            
merit selection  system, similar to Alaska; appointed  system, where                                                            
the Governor appoints judges; and an elected system.                                                                            
                                                                                                                                
Co-Chair  Donley pointed  out  that they  did have  a unified  court                                                            
system.   He indicated  that  other states  had  the flexibility  to                                                            
select other systems.   He noted that it was not accurate to say the                                                            
other  20 states  used a  retention system.   He  wondered what  the                                                            
criteria were on the surveys.                                                                                                   
                                                                                                                                
Mr.  Cotton   indicated  that  they   did  report  all  the   survey                                                            
information.  He noted  that they also reported detailed demographic                                                            
information.   He said that they promised  confidentiality  in order                                                            
to get accurate information.                                                                                                    
                                                                                                                                
Co-Chair Donley  wondered if all the responses were  included in the                                                            
information given to the public.                                                                                                
                                                                                                                                
Mr. Cotton replied that  the information was disseminated in several                                                            
different ways.   He noted that everyone  that responded  got his or                                                            
her numbers reported.                                                                                                           
                                                                                                                                
Co-Chair  Donley  wondered if  the distinction  between  those  with                                                            
direct  personal experience  and  those with  just  an opinion  were                                                            
carried over into the recommendation process.                                                                                   
                                                                                                                                
Mr. Cotton  explained that they did  report the different  levels of                                                            
professional experience.                                                                                                        
                                                                                                                                
Judge  Robinowitz, supreme  justice,  Court of  Alaska, pointed  out                                                            
that what  they were  dealing with  was one issue  and that  being a                                                            
periodic  evaluation  of  judges under  a  merit  selection  system.                                                            
There use to be no accountability  and they rejected that and wanted                                                            
the judiciary  to be accountable and  then a judge would  be elected                                                            
on a partisan ballot and  it was too compromising to the judges.  He                                                            
explained that  they came up with a periodic retention  and election                                                            
system.  He  asked the Committee if  it has worked.  He assured  the                                                            
Committee that the judges  were aware of the accountability that was                                                            
built into  Article 4 of  the Constitution  of the State of  Alaska.                                                            
He said  that his impression  was that the  system was working.   He                                                            
urged that they not change  it if it was working.  He said that sure                                                            
over 20 or 30  years they would get some bad opinions,  but he noted                                                            
that the thousands  of opinions that stand up under  scrutiny were a                                                            
service to the  system.  He opined that if they truncate  every term                                                            
into a four to  six year term they would dilute the  voters analysis                                                            
of a judges particular  record.  He pointed out that Alaska was able                                                            
to  get  more  information  to  the voter.    He  pleaded  with  the                                                            
Committee that the issue  was independence versus accountability and                                                            
they were dealing with  the Constitution of the State of Alaska.  He                                                            
stressed that they should not change something that was working.                                                                
                                                                                                                                
Senator  Donley  wondered   what  the  debate  was  in  forming  our                                                            
government.                                                                                                                     
                                                                                                                                
Judge Rabinowitz  recollected  that ten years  and six years  struck                                                            
the  appropriate  balance  on  undue  pressure  on  judges  and  the                                                            
people's  right to exercise  a check and  accountability on  judges.                                                            
These  were the  appropriate  time  frames.   In  1955  this was  an                                                            
experiment  and  he  noted  that  the  Constitution   was  still  an                                                            
experiment.   He pointed out that  what they had to do in  the court                                                            
system was gradually come  into maturation.  He stated that the test                                                            
of  time  has worked.    He  said  that they  needed  to  strike  an                                                            
appropriate balance  between accountability and allowing  the judges                                                            
to perform their judicial functions.                                                                                            
                                                                                                                                
Co-Chair Donley wondered  what the difference was in how society and                                                            
laws had evolved  since the 1950s.  He suggested that  it would have                                                            
been difficult  for the people in  the 1950s to have envisioned  how                                                            
the courts would have evolved.                                                                                                  
                                                                                                                                
Judge Rabinowitz  commented that this  was almost Political  Science                                                            
101.  He  explained that  they were a passive  institution  that did                                                            
not initiate  litigation.  He said  that they might go four  or five                                                            
years  without  seeing  a  case at  the  appellate  level  that  had                                                            
statewide  appeal.   With regards  to the  question  of whether  the                                                            
courts have become  more radical he suggested that  they take a look                                                            
at Marbury  (ph) vs. Madison.   He explained  that out of the  three                                                          
branches of government  the judiciary was the one  that was going to                                                            
decide what was constitutional  and would bind the three branches of                                                            
government.  He  urged that this was going on from  the inception of                                                            
government  and over time  it had  proven to work.   He pointed  out                                                            
that they had to draft  the Constitution in broad terms and they hit                                                            
on a  brilliant solution.   He said  that he did  not feel it  was a                                                            
reflection of an activist  court.  He would not label his colleagues                                                            
as activists.                                                                                                                   
                                                                                                                                
Co-Chair  Donley  wondered  what court  changed  the  standards  for                                                            
public interest  litigation  and the professed  intent of the  court                                                            
was  to promote  more cases  coming  to them  and  more involved  in                                                            
social issues.                                                                                                                  
                                                                                                                                
Judge Rabinowitz advised  that he had never seen any indication over                                                            
the years  that a justice  had a political  or philosophical  agenda                                                            
imposed  on the court.   Believe it  or not they  took the cases  as                                                            
they came and  no one dominated the  court.  He reiterated  that the                                                            
system was working.                                                                                                             
                                                                                                                                
LES GARA,  testified via  teleconference  from Anchorage,  expressed                                                            
that in 1955  the founding fathers  and mothers worked to  create as                                                            
credible a judiciary  as possible.  He urged that  they came up with                                                            
for this  nation a model  as an impartial  judiciary.  He said  that                                                            
they  came  up with  the  best  system  yet.   He  noted  that  they                                                            
considered  what they did  and they debated  what they did  and they                                                            
decided  that reducing  the  retention  terms was  a bad  idea.   He                                                            
referred to  the idea that the judges  currently were more  radical.                                                            
He pointed  out that  in the  1950s there  was the  same cries  that                                                            
judges were radical.                                                                                                            
                                                                                                                                
                                                                                                                                
SFC 01 # 74, Side A 10:55 AM                                                                                                    
                                                                                                                                
                                                                                                                                
Mr. Gara noted  that the work done in 1955 was good  work and agreed                                                            
with  Judge Rabinowitz  that  there has  been nothing  to  encourage                                                            
changing  it now.    He urged  the Committee  to  go  back and  read                                                            
through the constitutional debates.                                                                                             
                                                                                                                                
Co-Chair  Kelly frustrated  about  some of  the testimony  that  the                                                            
deference  to the  constitutional delegates  of 1955  that the  same                                                            
people say  that the Constitution  was a living document.   Ignoring                                                            
the  fact   that  they  put  for   us  a  method  of  changing   the                                                            
constitution.   He pointed out that  the delegates in 1955  probably                                                            
never imaged that  the courts would be taking the  kind of liberties                                                            
that they are taking currently.   Doubt that they ever imagined that                                                            
the courts would be taking  the kind of freedoms that they have been                                                            
taking.   The right  of appropriation  belongs  to the legislature.                                                             
Only convenient when it suits their purposes.                                                                                   
                                                                                                                                
Bruce Weyrauch, President,  Alaska Bar Association, believed that an                                                            
independent  form of judiciary is  critical to the government.   The                                                            
more the political  process moves the retention level  down the less                                                            
they could provide the clients in the private sector.                                                                           
                                                                                                                                
[Heard and Held]                                                                                                                
                                                                                                                                
                                                                                                                                
AT EASE 10:58 AM/10:59 AM                                                                                                       
                                                                                                                                
                                                                                                                                

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