Legislature(2001 - 2002)
04/09/2001 04:43 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 161-NO PAY FOR JUDGES UNTIL DECISION
SENATOR DONLEY said existing law has been interpreted by the
judiciary to mean that the six month existing provision for
conferring on judicial decisions only applies to individual
justices. So that once an individual justice produces a
preliminary opinion for circulation among other members of the
court, the six month provision has been complied with but an
endless amount of time can go on from that time. SB 161 would
create a deadline for final action by an appellate court,
shortening the six month time frame to four months for individual
justices and judges. SB 161 would also require an explanation in
the voter's guide of why a judicial officer had not received a
salary warrant.
MS. STEPHANIE COLE, Administive Director, Alaska Court System, said
it was clear that the purpose of SB 161 was to encourage timeliness
and eliminate unnecessary delay. Ms. Cole said that Chief Justice
Fabe wanted the committee to know that she shared the feeling that
timeliness issues needed to be addressed and that the court was
addressing them. A year ago the court adopted trial court time
standards and is now making active efforts to clean up its data to
make sure it knows the current situation of its cases, to assess
situations, and to develop new monitoring and procedural processes
to shorten time delays. Last fall all judges went through training
on case management and control technique, and the court is now
developing a mentoring program so that when a new judge comes to
the bench someone will help them with case management techniques.
Appellate courts would also be addressing delay, and the supreme
court has adopted time standards and new procedures for flagging
and monitoring cases. Next year Chief Justice Fabe will be
reporting to the legislature on the supreme court's progress in
speeding up its cases. She said it was easier to apply new
procedures to new cases and the court would have to figure out a
way to handle older cases. Now, every case over a year old is
being flagged and brought up at every conference to see if it can
be moved through more quickly.
MS. COLE urged that SB 161 not move forward because the imposition
of time frames would have a substantial fiscal impact on the court
system. In the court's research on SB 161 it looked at other
states with statutes similar to Alaska - Nevada, Montana, and
Wisconsin, and in all three states these statutes were found to be
unconstitutional. Ms. Cole submitted copies of those cases to the
committee. The cases found that those types of statutory
provisions are unconstitutional because they violate separation of
powers and because they concern the efficient and effective
functioning of a court system, which is a matter of court
administration within the exclusive authority of the judicial
branch of government. The cases also found that laws like those
violate the constitutional prohibition against diminishing a
judicial officers salary while in office and are also an
impermissible impairment of contract. It was clear from existing
case law that if a challenge were to be mounted to either the
existing statute or the proposed revised statute it would fail.
CHAIRMAN TAYLOR asked if the same would hold true for the
withholding of a salary warrant on a superior or district court
judge if they were to violate the existing statute.
MS. COLE responded yes, upon challenge.
Number 790
MS. COLE said the appellate court had proposed time standards
without penalty provisions attached and that salary warrants do not
stop if the time standards are not met. Time standards are
statistical time standards rather than individual case reporting.
MS. COLE said there was also a provision in SB 161 saying an
appellate judge or justice would not receive a paycheck if there
were any matters pending before the court for more than eight
months, regardless of whether the case had been assigned to that
judge. The court system felt this was a fundamental fairness and
logic issue because a judge or justice could be performing
diligently, efficiently, and in a timely manner and that person
could still be deprived of a paycheck. There are reasons a case
lingers in the supreme court longer than the time assigned to a
particular justice. For example, in the last seven years, four of
the five justices turned over, and in each of those circumstances
the caseload was reassigned to another justice. If a case
circulates and there is a dissenting opinion, it is not held
against the author or justice because there are many reasons why a
case could last longer. She said most of the cases before the
court now have been there less than a year.
SENATOR COWDERY asked how long a judge takes on an appeal issue.
MS. COLE said at the appellate level, six months is the outside
time after an oral argument is assigned to a judge, and if there
has been no oral argument the case is conferenced and assigned to a
judge. From that time a judge or justice has a six month period.
SENATOR COWDERY asked what the shortest time was.
MS. COLE replied there are many expedited matters that go through
the courts with the shortest time being a matter of days or weeks -
children's proceedings and domestic cases are expedited. All cases
do not come up against the six month time period but the majority
of cases are decided within that time period, and 64 percent of the
supreme court decisions go through within the eight month time
frame.
MS. COLE said that although the court system felt SB 161 was
unconstitutional, with reference to the reduction in time, it has
provided a fiscal note in conformance with statutory provisions.
The six month rule has been in conformance since statehood and the
legislature has given the courts sufficient funding to allow trial
court judges to make decisions within six months. Judges have been
able to meet current deadlines but she said it was unrealistic to
think that judges would be able to meet such radically shortened
deadlines without additional resources. SB 161 has a strict
liability rule, no excuses are allowed for such things as illness
or the unexpected leave of a law clerk. Therefore, if a case were
not decided within the six month referral, a judge would lose a
paycheck, and SB 161 is changing that time to four months.
SENATOR DONLEY injected that a case could be reassigned to another
judge.
MS. COLE said a case could be reassigned but that may or may not be
an efficient way to handle the case depending on its complexity.
MS. COLE noted that Alaska's supreme court is not a "cert."
[Certiorari] court and has no control over the number of cases
before it. If the supreme court were to meet an eight month time
frame for all cases, it would have to have some control of the
cases that came to it. In the fiscal note narrative, there is
comparative information about the productivity of Alaska's supreme
court versus the supreme courts of California, Oregon, and
Washington, which are also "cert." courts. In 1999, California's
seven supreme court justices authored an average of 13 opinions
apiece, Oregon's seven justices authored 14 opinions apiece, and
Washington's nine justices each authored approximately 16 opinions.
Alaska's supreme court has five justices, and last year out of 153
cases there were approximately 31 opinions per justice. Each
opinion averaged 20 pages and that was in addition to petition work
and other work that needed to be done.
MS. COLE said that currently the supreme court is issuing decisions
within the eight month period under SB 161 in approximately 64
percent of the time. It is the court's assessment that the eight
month time in SB 161 could not be met unless the supreme court
became a cert. court by the creation of an intermediate civil court
of appeals. The criminal court of appeals has three members
sharing a caseload and it is currently issuing decisions within the
eight month period approximately 71 percent of the time. While it
is possible the court of appeals could not meet the eight month
deadline without the infusion of additional judicial resources, the
fiscal note reflects the request of two additional staff people to
help meet deadlines. With reference to trial courts, there is a
lot of variation around the state with regard to volume and
complexity. The fiscal note looks to the primary resource that a
judge has to help him or her decide cases - law clerks. There are
certain superior court judges that do not have that primary
resource and the fiscal note adds a full time law clerk in Barrow,
Kotzebue, and Dillingham. It also adds judicial resources in the
locations that have the heaviest caseloads or the highest trial
rates, which is Anchorage, Fairbanks, Palmer, and Bethel.
MS. COLE said Section 2 has a very complex requirement for
information and it requires the administrative court director to
report that information to the lieutenant governor. The court had
no problem with the first part of Section 2 - salary warrant
information, which is exception reporting, but the second part of
the information requires the administrative director to track, age,
and count every decision a judge makes. Ms. Cole reads that
language to mean that every time a judge issues an order, whether
it is signing a stipulation for continuance, signing a reference
from a master, or whatever a judge does, would have to be reported.
The current system could not track all that information, but the
report at the end of the year would say, "this judge made 5,000
decisions in zero to four months and one decision in four to eight
months, or whatever the time frame is." She said this might give
some information on how busy judges are, but she was not sure the
information could be collected.
MS. COLE noted that some of the current language was very general
such as, "no matter referred to the justice for opinion or decision
has been uncompleted or undecided by the justice for a period of
more than six months." SB 161 is much more descriptive in terms of
what milestones are required.
SENATOR DONLEY asked her to follow up on her last point.
MS. COLE said that right now, cases in which an oral argument has
not been requested are treated exactly the same as cases in which
an oral argument has been requested, and they would be conferenced
on the same date. When the last responsive pleading comes in, the
law clerk does a work up and it is then circulated. At the
conference on the case, the case is assigned and it is decided who
is to write the opinion.
Number 1355
SENATOR DONLEY asked why a shorter period of time would be a
problem.
MS. COLE replied that going from eight months to four months
severely shortens the time periods, and any period of time matters.
SENATOR DONLEY clarified that it was not the amount of time that
mattered, but that when a justice is already under a restraint,
every day counts.
MS. COLE said that was correct.
SENATOR DONLEY asked about fairness and equity for the citizens of
Alaska going through the judicial process. He said there was one
case that had not been decided in three years, and he asked if
there was a list for cases 18 months to 2 years old.
MS. COLE said there are currently 19 cases before the court that
are more than one year old. There are 465 cases currently before
the court and of those, three are more than two years old. Of the
465 cases, approximately 220 are fully briefed and awaiting a
decision. Of the 220 cases, 19 are one year old.
CHAIRMAN TAYLOR asked if that number was from oral argument.
MS. COLE said the 220 were dated from the date of oral argument.
SENATOR DONLEY asked about fairness to the citizens of Alaska who
have waited over three years for a decision. He thought this was
blatant unfairness to the people who depend on the judiciary for a
resolution of conflicts in a civilized society.
Number 1497
MS. COLE said the court system was totally committed to working on
timeliness and this could be seen from what the courts have done
and are planning to do. She said when looking at the number of
cases going through the court, there are three cases over two years
old, which is an extremely small percentage, but that is scant
comfort for the litigants in those three cases and the court system
is doing everything it can to make sure it does not happen in the
future.
SENATOR DONLEY said he would be interested in exploring an
extension for the instances when a new judge comes to the court and
is assigned to a case he or she has not heard the oral argument
for. He asked how the court handled this type of delay problem.
MS. COLE said this was a difficult situation to deal with.
Sometimes a justice will stay on after he or she retires to handle
their caseload, but they cannot always stay until that is
accomplished. She said that much of what the supreme court does is
shrouded in confidentiality and it cannot be seen when
reassignments occur or when a case is waiting for a dissent to be
written. Many factors can play into the delay of an older case and
when those cases come out some have lengthy dissents.
SENATOR DONLEY asked how the court handles the problem of a new
justice being empanelled who had not been present for the oral
argument. Do they recuse themselves from a decision or do they
vote?
MS. COLE said she believed they listen to a tape of the oral
argument.
SENATOR DONLEY asked if the policy was to allow them to vote in
these cases.
MS. COLE said she believed that was the case but she was not
certain. She said she would find out if there were a written
policy on this issue.
Number 1676
SENATOR THERRIAULT asked if there was allowance for legislative
direction or penalty with regard to payment in these cases.
MS. COLE said no. The cases were clear that any infringement in
this area was impermissible.
SENATOR THERRIAULT said he would like to read through the cases to
see how they would apply to Alaska.
SENATOR DONLEY asked if the court system was opposed to the
information required in Section 1 being included in the voter's
guide.
MS. COLE said the court system takes no position on that.
Number 1817
CHAIRMAN TAYLOR said he had often wondered if the existing statute
was unconstitutional.
I wonder why we have all abided by it, those of us that
are constrained under it for so long. My only thought on
that is that it might be that no judge has wished to
bring suit for failure to get out a decision and having
his paycheck or her paycheck withheld, and challenge the
constitutionality of the right of the legislature to do
that. I'm not sure how each of these cases were probably
brought by people who were not facing a retention
election themselves. But that is fascinating and I know
there have been constitutional conflicts between
legislatures and courts. In fact we've just come from
the floor where we had a pretty significant debate about
what our supreme court could order commissioners to do.
We've had, as you know, a recent decision where we have a
superior court judge threatening to hold the commissioner
of health and social services in contempt of court should
she not spend and appropriate money on a subject that she
had no money to spend or appropriate because the
legislature had not given her any funding for that. So
she is between a very difficult rock and a hard place and
the administration choose to support her and her concepts
rather than to support the legislature and what policy it
has set down. So we find ourselves in this very
difficult position in the HESS budget because of that. I
know that in the state of Colorado the state had failed
to grant any increase in pay to the judges for several
years and so the supreme court of the state of Colorado
issued an order to the treasurer of the state of Colorado
ordering him to increase pay to the judges. When he
refused to do so they threatened to hold him in contempt
of court, at which point this constitutional crisis had
built to a sufficient place that the Colorado legislature
sat down with the court and they figured out where we go
from here and they eventually got their raises. I, like
Senator Therriault and the rest of the committee, don't
wish to start some sort of constitutional confrontation,
and we appreciate the good efforts of the Chief Justice
and Chief Justice Matthews was also working on the same
scheme. My fear is though, it's like a former justice
once told me about one of the employees, his suggestion
was the only reason that fellow was still with us, is he
hasn't made three of us mad all at the same time. I
think the same may prevail when it comes to this rule.
It's going to take a unanimous court probably to
establish that guideline or that rule and I think each of
us wonders what will provide the teeth to have that rule
or that policy carried out within the court.
SENATOR DONLEY thanked Ms. Cole for her thoughtful testimony.
SENATOR DONLEY proposed the committee work on a CS that maintains
the existing six month standard with an exception provision for the
arrival of a new justice. He said he would like written guidelines
on how justices are allowed to vote, whether they are allowed to
vote without hearing the oral argument. He said Section 2 needed
to redefine orders, which would provide a six month initial
decision.
CHAIRMAN TAYLOR said SB 161 would be held in committee until a
better working document was established.
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