Legislature(2001 - 2002)
04/20/2001 01:46 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
Number 2301
SB 161-NO PAY FOR JUDGES UNTIL DECISION
SENATOR DONLEY acknowledged a previous hearing on SB 161 and said
there had been a discussion with representatives from the court
system and they felt that six month terms were an appropriate time
for the initial decision of a case. The CS before the committee
would change the time from four months back to six months and there
would be a 12 month limit for appellate courts for which there is
no effective limit now. There would now be six months for the
initial decision and six months for the final decision. SB 161
also provides a two month time to assist with new judges who have
not heard an oral argument for a case they have been assigned.
SENATOR THERRIAULT thanked Senator Donley for making those changes.
CHAIRMAN TAYLOR said he had been involved in a teleconference with
the Alaska Judicial Council and discussed with Chief Justice Fabe
and members of the council some of the concerns they had about
pending legislation. He was pleased with the council's response
and their willingness to work with the legislature and the court
system.
SENATOR THERRIAULT moved to adopt CSSB 161(JUD), \O Luckhaupt, as
the working document of the committee. There being no objection,
CSSB 161(JUD) was adopted.
Number 1949
MS. STEPHANIE COLE, Administrative Director, Alaska Court System,
testifying via teleconference from Anchorage, said the new CS was
still problematic. The proposed legislation, in its original form
and the new CS, is almost certainly unconstitutional because of the
doctrine of separation of powers as elaborated in the three main
cases she discussed with the committee at the previous hearing.
The cases dealt with the efficient and effective functioning of the
court system, which was a matter of court administration within the
exclusive authority of the judicial branch. The cases found
constitutional flaws based on the impairment clause and the
prohibition against issuing judicial salaries during terms of
office.
MS. COLE said the CS still had a provision that would stop an
appellate judge or justice's salary if an opinion or decision was
not issued within one year, regardless of the assignment of that
case, and this was fundamentally unfair. SB 161 would make a
justices salary dependant on factors totally beyond his or her
control. She said a justice could be doing his or her job in an
efficient and timely manner and could individually be meeting all
time standards, but that person's paycheck would stop if the entire
court did not issue an opinion in a certain time frame. The judge
or justice in that circumstance would have no control over the
actions or inactions of the other justices. She said there was no
other provision like that in any law that the court system has been
able to locate.
MS. COLE said there were 20 cases before the supreme court that
were over one year in age. Those 20 cases are out of 465 cases
before the supreme court, 220 of which are fully briefed and
awaiting opinion. Out of the 220 cases, 20 are over one year in
age. The 20 cases are different from the majority of cases the
court handles, being more complex and more likely to have a split
decision. If SB 161 were to pass and become effective, all
paychecks for the supreme court would immediately stop. This would
precipitate a challenge to SB 161 especially since the rule was a
no excuses rule, not allowing a good cause exception, which allows
for time to be exceeded or extended for good cause. It seems
likely that a challenge to a provision like that would call in to
question the constitutionality of the whole scheme, not just the
provision. The supreme court has no ability to control the number
of cases that come before it. Since there is a right to one appeal
per case as a matter of right, the only way to ensure that the
supreme court would have the control to allow it to meet these
deadlines would be to create an intermediate court of civil
appeals, as reflected by the fiscal note. Also reflected in the
fiscal note are two additional staff positions for the criminal
court of appeals. Additional judicial resources may be needed to
meet the 12-month deadline in the criminal court of appeals but the
fiscal note just reflects two additional staff people.
MS. COLE explained that under Section 2 of the CS the courts
administrative director was required to report certain information
to the lieutenant governor. Salary warrant information and
information about why a judge or justice had not been issued a
salary warrant is the type of information that would need to be
reported, and the court has no problem with doing that if the
information is readily available. The other information described
would be impossible to gather and would not produce meaningful
data. The provision requires data on all opinions and decisions,
the counting of those opinions and decisions, and to report the
time frame of those decisions and opinions. She said judges make
dozens of decisions every day and it would be impossible, with the
courts current computer system, to identify all the actions that
constitute opinions and decisions of a judicial officer and to
collect that data.
MS. COLE said the current legislation uses very general language
about when the time starts running on when a decision has to be
made. SB 161 instead attempts to detail the milestone at which the
time period under advisement begins to run. The milestone for
supreme court cases in which no oral argument is requested is
defined as the filing of the last responsive pleading. That is not
an appropriate milestone because there is no justice to write the
decision at that point. These cases would be scheduled for
conference discussions on the same track and the same time frame as
cases for which oral argument has been requested. So if two cases
are filed on the same day and only one case has requested oral
argument, conference would occur in the oral argument case
immediately following the oral argument. Conference would be
scheduled on the non-oral argument case within a week of either
side of the oral argument. In that way the court ensures that no
advantage or disadvantage occurs as a result of a request for oral
argument. The initial conference is when the court meets on that
case for the first time and decides on a tentative ruling and the
case is assigned to a justice for preparation of the decision. The
initial conference therefore is the milestone at which time periods
should start to run against an assigned justice.
MS. COLE said SB 161 represents an unconstitutional violation of
separation of powers and the structure it seeks to impose on the
appellate court, which can result in a judge or justice losing a
paycheck through no fault of that person.
Number 2301
SENATOR DONLEY told Ms. Cole he would be happy to entertain any
changes she suggested for Section 2 as far as clarifying what types
of decisions or opinions are being referred to. The difference
between the final oral argument and a non-oral argument and when
they are assigned would be made up by the additional 6 months
provided.
MS. COLE said an initial conference would be more appropriate than
last responsive pleading as a milestone for supreme court opinions.
SENATOR DONLEY said that did no good because there would not be a
conference, it would be delayed. That would not be an objective
standard because it would be under the control of the judiciary,
which could give itself unlimited time for making a decision by
just not having an initial conference.
MS. COLE said the court recognized and agreed that time limits were
something that had to be a concern and unnecessary delays had to be
avoided.
SIDE B
SENATOR DONLEY moved to add a delayed effective date of January 1,
2004, which would add a new section. That would give the court
more than two years to clean up its docket of cases that are more
than two years old.
CHAIRMAN TAYLOR asked if committee members understood the new
motion. There were no questions and no discussion. There being no
objection, amendment 1 passed.
CHAIRMAN TAYLOR said the constitution provides that the Alaska
legislature, by a two-thirds vote of each house, can amend court
rules. He asked if the rule the legislature was amending was only
effective on the parties.
MS. COLE said she would like to think about that answer and respond
in writing.
CHAIRMAN TAYLOR thanked her for her candor. He said the
legislature was the body under the constitution that creates the
jurisdiction of the courts and it is the only one empowered to
create courts. As a consequence of being the body that has the
authority to create the system, it has no authority over that body
once it has been created. He said the legislature was not trying
to bring about a constitutional challenge or conflict, but it was
asking for assistance to find a way to solve cases faster so that
justice would not be delayed through denial.
Number 2168
MS. COLE said the supreme court of Indiana ruled in a case on the
issue of payroll salary warrants, and the ruling was that even
though a statutory court, created by the legislature, derives its
judicial powers from the constitution, it was no more subject to
regulation by the legislature than courts created by the
constitution itself. It decided that once a court was created its
powers come from the constitution and not from the legislature.
SENATOR DONLEY moved CSSB 161(JUD) from committee with individual
recommendations.
SENATOR ELLIS objected. He said that specific questions had been
asked of the court and that it would be prudent to wait for those
answers before moving the bill out of committee.
CHAIRMAN TAYLOR said that SB 161 had been in committee for quite
some time and he wanted to send it to the Finance Committee where
they could look at these questions.
A roll call vote was taken with Senator's Donley, Cowdery,
Therriault, and Chairman Taylor voting yea and Senator Ellis voting
nay. CSSB 161 moved from committee with individual
recommendations.
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