Legislature(2021 - 2022)BUTROVICH 205
02/12/2021 01:30 PM Senate JUDICIARY
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| SB14 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
| += | SB 14 | TELECONFERENCED | |
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SB 14-SELECTION AND REVIEW OF JUDGES
1:36:02 PM
CHAIR REINBOLD announced consideration of SENATE BILL NO. 14,
"An Act relating to the selection and retention of judicial
officers for the court of appeals and the district court and of
magistrates; relating to the duties of the Judicial Council;
relating to the duties of the Commission on Judicial Conduct;
and relating to retention or rejection of a judicial officer."
1:36:43 PM
NANCY MEADE, General Counsel, Alaska Court System, Anchorage,
Alaska, spoke in opposition to SB 14 at the direction of the
Alaska Supreme Court (ASC). She remarked that the ACS normally
remained neutral on bills but SB 14 falls under the exception
for a bill that would materially affect the administration of
justice. She summarized that in a nutshell, the court viewed
this bill as undermining the independence of the judiciary and
the public's trust in the court system. It would hinder the
ACS's ability to handle cases effectively and fairly in a few
concrete ways. She reminded members that she was speaking for
the Alaska Court System and not for the other two entities that
reside in the judicial branch, the Alaska Judicial Council
["Judicial Council"] and the Commission on Judicial Conduct. The
courts rely on those two entities and highly value their work,
but they are separate.
1:38:05 PM
MS. MEADE said the Judicial Council screens applicants for
judgeships to ensure that the applicants are highly qualified
individuals suited to be a judge. The Judicial Council performs
analyses and provides information when a judge stands for
retention in an election as provided for in the Alaska
Constitution and Alaska Statutes. The Commission on Judicial
Conduct is solely responsible for ensuring that judges adhere to
the highest judicial ethical standards reflected in the Code of
Judicial Conduct that judges must and do strictly follow. This
bill would move and change many of those duties, but specific
questions would be better directed at those entities.
1:38:47 PM
MS. MEADE highlighted the most severe impacts the Alaska Supreme
Court views if this bill should pass. The ASC's major concerns
with SB 14 appear in Sections 12 and 14. Section 12 applies to
how seats on the Court of Appeals are filled when a judge leaves
state service, and Section 14 applies to how District Court and
magistrate positions are filled. She offered to address
magistrates later since novel and overarching issues separate
them from judges. Under this bill, the current merit selection
process enshrined in the Alaska Constitution for the Supreme and
Superior Courts would be replaced by an entirely different
process of seating judges. She said that the new system would
make politics and political affiliation a key factor for seating
judges.
1:38:52 PM
MS. MEADE said that under SB 14, the current merit system for
naming judges would be replaced with the system used in
Washington, D.C. Because the court system has seen that that
system puts Washington D.C. judges squarely in the middle of
party politics and that its process can be slow and unfair, the
ASC opposes moving Alaska's branch of government closer to that
system. As long as the Alaska courts have existed, lawyers
seeking to become judges apply to the Judicial Council. The
council undergoes a thorough, multi-step process for gathering
input from multiple sources about that person. The Judicial
Council analyzes all information on the applicant that it can
unearth, including the person's legal analytical skills,
suitability of past experience, respect afforded by their peers
and character traits such as humility, integrity, temperament,
and fairness. The council conducts interviews, holds public
hearings, and finally identifies who among the applicants are
the highly qualified ones that could serve Alaskans as a judge.
Those names are forwarded to the governor, who considers the
names and conducts whatever research they wish to consider, and
finally appoints the new judge.
1:41:08 PM
MS. MEADE referred to page 5, lines 13-14 of SB 14, which would
allow the governor to appoint from the list of fully vetted and
qualified names provided by the Judicial Council "or one person
who was not nominated but is qualified under AS 22.07.040." She
explained that the qualifications require that the person be a
US citizen, an Alaska resident, and a bar member who has
practiced law for a certain number of years. The governor could
appoint any Alaska lawyer, even if the person did not have a
high level of legal ability, relevant experience, integrity, or
someone who had a background that could be troubling, she said.
1:42:00 PM
MS. MEADE referred to page 5, lines 14-15, which read, "An
appointment made under this section is subject to confirmation
by a majority of the members of the legislature in joint
session." She referred to page 6, lines 26 -27, which read, "An
appointment made under this section is subject to confirmation
by a majority of the members of the legislature in joint
session."
MS. MEADE pointed out that unlike cabinet members, the bill says
the person appointed cannot be seated until after confirmation,
which establishes a statutorily built in delay in seating judges
that will directly slow the progress of criminal cases. These
changes are to the courts that handle criminal appeals and
misdemeanors. These seats will remain vacant for up to a year,
she said.
MS. MEADE stated that the confirmation process can go smoothly
or it can go badly, depending on the nature of the office being
filled and the political dynamics surrounding that office and
the appointee. Sometimes confirmations can be acrimonious or
unfair. Just look at what recently happened with the
confirmation hearing in the US Senate, she said. Many of the
steps required of an appointee seeking to be confirmed are
incompatible with a judge's ability and duty to handle every new
case with an open mind and base the decision solely on the
existing law and facts that apply in the particular case. In
order to make those neutral and fair decisions, a judge cannot
within the bounds of their code of ethics have made commitments
or made representations about what the judge would do with any
forthcoming issue.
1:43:32 PM
MS. MEADE said that if the governor can appoint any attorney who
has a certain number of years of practice, who is confirmed by
the legislature, it means that some appointees will never have
undergone a thorough vetting process like the one the Judicial
Council currently performs. The factors that allow a person to
become a judge will change and be replaced with factors that
played no role in the Judicial Council's merit review, such as
party affiliation and possibly political contributions. Those
factors would become much more important in the governor's
appointment decision and during the legislature's confirmation
process.
MS. MEADE said that during a previous hearing, the sponsor's
staff indicated that the legislature "need to rein in the
judges" somehow because the judges are, in fact, political
already. And even though the courts covered in this bill don't
have any jurisdiction over the social or political issues that
seem to be causing concerns recently, the other two branches
should have more control over the judiciary. She attested that
the system has worked well. In the 60 plus years that Alaska has
been a state, it has not had any judges involved in terrible
public scandals or had to resign in disgrace. Some judges have
been disciplined for various transgressions, but none have been
criminal, and none have unsavory backgrounds that have been
uncovered. That clear record is a testimonial to the thorough
and careful system, she said. She said that every aspect of a
judge's character and past has been examined.
1:45:09 PM
MS. MEADE said that to make these judges gubernatorial
appointees with legislative confirmation has the potential that
judges will be chosen like other appointees or cabinet members -
with an eye for political alliances or a certain level of
allegiance with the governor. She remarked that before this is
taken as a slight or anything negative whatsoever, it makes
sense to look realistically at how governor appointments go. If
you would think a Governor Shower would appoint the same
individuals as a Governor Kiehl would choose, then this makes
sense, she said. Confirmation would depend on how the
legislature was organized. That is exactly how politics work and
it is perfectly okay. Cabinet members and advisors, and boards
and commission members are intended to reflect a certain
ideology and the legislature's political preferences. However,
that system would be an infringement on judicial independence.
Currently judges in the court system, which is a separate and
equal branch of government with a mission based on neutrality
and fairness is one that strives to be apart from politics. That
is why the Alaska Supreme Court opposes SB 14, she said.
1:46:34 PM
MS. MEADE argued against politicizing the court. She emphasized
that the goal, as explicitly discussed by the drafters of the
Alaska Constitution, is to have as little political
consideration as is humanly possible to determine who becomes a
judge. If the complaint is that the current selection system is
already political, the solution is not to replace it with a
patently and inarguably even more political system, she said.
She contended that when litigants appear in a courtroom, they
should not feel disadvantaged or advantaged by whose side the
judge is already on based on the governor's philosophy who
appointed the judge. She maintained that the solution in SB 14
would certainly politicize judges. New judges would clearly and
identifiably be conservative or liberal dependent upon the
governor's political affiliation and how a legislature
organizes, she said.
1:48:01 PM
MS. MEADE highlighted other issues. The bill would impose a
vague philosophical litmus test that would be impossible to
implement, which would deter potential applicants. The selection
process for the 38 magistrate positions would change to governor
appointees. These magistrates have very limited jurisdiction and
do not handle significant constitutional matters or ones with
serious policy issues. The ACS currently struggles to fill
magistrate positions. She predicted that the ACS would need to
close some courts because the bill's hurdles will cause people
not to apply. She cautioned that moving the retention
evaluations to the Commission on Judicial Conduct (CJC) would
dilute the focus of this ethics commission. The ACS has valued
having the CJC focused solely on judicial ethics.
1:49:40 PM
SENATOR KIEHL asked for a follow-up on which magistrate
positions would remain unfilled. He turned to the litmus test,
noting that the terms seem at odds to him. Yet, the Judicial
Council would be bound to only forward applicants who agree to
strict constitutionalism and abide by legislative intent. He
asked her to explain these philosophies from an attorney's
perspective.
MS. MEADE explained that this wording was not found elsewhere in
the legal realm. She maintained that it would be difficult to
implement and applicants would not understand what they agreed
to. She explained that strict constitutional interpretation
means how a person interprets the constitution, but she did not
know what was meant by "constitutional interpretation of a
statute or regulation." She explained that interpreting a
statute to determine what is meant and adhering to legislative
intent often contradict each other. This language will raise
questions about what that means, how it could be applied, if it
can be implemented, and just what an applicant would agree to,
she said.
1:51:15 PM
SENATOR HUGHES said she was not surprised at the ACS's position
on SB 14 since maintaining the status quo is more comfortable
than change. She noted that those who convened to write the
Alaska Constitution purposefully did not include the Court of
Appeals or magistrates in the constitution but left it to
statute. She said she took issue with her statement something
like "undermining the independence and the public trust of the
judiciary branch. In her experience as a legislator attending
public meetings and town halls, people have expressed a lot of
distrust and concern that the system is lopsided. She said when
she thinks of the checks and balances in the US Constitution and
in the three branches of government in Alaska, she views the
back and forth between the executive branch and the legislature
going in both directions. However, the only way the legislature
can institute checks and balances is through the budget process,
she said. She asked if any other checks and balances exist for
the judiciary branch.
MS. MEADE answered that the Alaska Constitution does not address
the Court of Appeals and magistrates because neither existed in
1959. She pointed out checks and balances for the legislature
and the judiciary currently exist. If the legislature disagrees
with a decision made by an appellate court or a trial court, the
legislature can overrule the court by adjusting the statutes and
clarifying the language. She acknowledged that this happens at
least once each legislature. She offered her belief that
Legislative Legal reviews all court decisions and identifies the
ones the legislature may need to address.
1:54:07 PM
SENATOR HUGHES interjected that she did not view this as
overruling, but rather as submitting to the court's decision and
then changing the statutes.
MS. MEADE said she has seen wording in bills that read, "in an
attempt to overrule this court decision." She acknowledged that
the legislature cannot change it to apply retroactively to the
parties to the litigation. Still, the legislature can change the
statutes to explain the statutory intent more clearly. She
agreed the legislature has appropriation power. The legislature
can take the first step toward constitutional changes. However,
the court is limited in its ability to react. The court must
resolve issues before the court, including election cases. She
said she believes that people read decisions and draw
conclusions about the judges who made them. If the decision
ruled another way, the other side would likely draw a different
conclusion, she said. She contended that judges decide cases
based on precisely what is in front of them and decide if
something violates the constitution for the benefit of the
people.
1:56:12 PM
MS. MEADE recalled hearing Chair Reinbold say on the floor that
the state needs someone to say if a governmental action is
unconstitutional. She argued that the court is charged with
determining it.
1:56:29 PM
SENATOR HUGHES maintained her position that when the legislature
takes further action to clarify the statutes, it is still
accepting the court's ruling, which does not provide the same
balance.
SENATOR HUGHES argued that when the Alaska Constitution was
written, the politics of attorneys was reasonably balanced. She
offered her belief that lawyers lean towards the left. She
stated that some attorneys who are members of the Alaska Bar
Association have made it clear to her that getting an
appointment is unlikely unless the appointee is left-leaning.
She asked the record to reflect this. She said, "I've had
attorneys approach me and agree with bringing the people's
branch into this process at least for these lower courts."
1:57:57 PM
CHAIR REINBOLD stated that Senator Shower is online.
1:58:14 PM
MS. MEADE argued that it could not be true because judges whose
backgrounds were viewed as quite conservative have been
recommended by the Judicial Council and were appointed as
judges. She said she was unsure if something else discouraged
the person from applying because the facts do not bear out the
allegation.
1:58:53 PM
CHAIR REINBOLD said she also had questions about checks and
balances on the judicial branch. She related that during her
time in the legislature, laws have been struck down by the
courts, including one on parental rights on abortion. She argued
that she did not see the balance when a judge can arbitrarily
make a decision. She compared it as similar to what the governor
does. She maintained that the question to identify the check on
the judiciary has not been answered.
2:00:41 PM
MS. MEADE remarked that she did not think that she could respond
in a way that would satisfy the Chair in terms of the specific
parental rights case that was mentioned. She highlighted that
some entity in government has to protect the people and uphold
the Alaska Constitution when the government does something
unconstitutional. It is the court's role to make that decision.
The court does not make the decision based on popularity or
based on what the majority of the people want but based on what
the Alaska Constitution provides. She explained that this is
considered a built-in protection, so unconstitutional laws do
not take effect.
2:01:27 PM
CHAIR REINBOLD referenced her statement that the court was to
protect the people and uphold the constitution. She asked how
the decision on parental rights protects people when a random
person can take a girl to get an abortion without the parent's
consent. She said the US Constitution provides the right to
life, liberty, and the pursuit of happiness. She said she was
bewildered by the answer.
MS. MEADE responded that the constitution provides numerous
rights, including due process, the right to privacy, and equal
protection all come into play. She said she did not come
prepared to defend the Alaska Supreme Court's specific decision.
She offered to discuss the case further. She maintained that the
Alaska Supreme Court ensures that the constitution is followed
to benefit all Alaskans. She noted that the Alaska Constitution
is the supreme law of the state.
2:02:40 PM
CHAIR REINBOLD asked whether she believes that an unborn child
has the right to life.
MS. MEADE responded that she was not prepared to answer that
question in this forum.
2:02:58 PM
SENATOR KIEHL recalled previous testimony before the committee
on Justice Douglas's majority decision in Griswold v.
Connecticut. That decision acknowledged that citizens' rights
emanate from the penumbra of the rights in the Bill of Rights,
which indicates how the courts protect the people. He related
that Ms. Meade had articulated the separation of powers and
checks and balances that emanated from the US Supreme Court's
decision in Marbury v. Madison. He asked whether the drafters of
the Alaska Constitution were aware of that decision and if it
was altered.
MS. MEADE responded that she could not speak to the drafters'
mindset, but it was an 1803 decision that provided for judicial
review. Since the Alaska Constitution was drafted in 1959, the
framers were undoubtedly aware of US Supreme Court decisions and
US constitutional provisions.
SENATOR KIEHL asked whether the drafters altered the framework
of judicial review.
MS. MEADE answered no.
2:04:38 PM
SENATOR HUGHES referred to the litmus test mentioned and judges'
duties to strict adherence to the constitution. She also
questioned what strict adherence to the statutes might involve.
She pointed out that judges will refer to the legislature's
intent with respect to specific statutes. Last March, the
legislature debated on the Senate floor and decided not to
remove the requirement of signatures being witnessed on absentee
ballots in light of the pandemic. A judge struck that down on
the constitutional basis that people have a right to vote. Yet,
the [Alaska] Constitution says explicitly that the methods for
absentee voting will be determined by law. The legislature
debated that law and left the witness signature requirement in
place. She characterized it as unilateral lawmaking.
MS. MEADE responded she was familiar with the decision, which
was affirmed unanimously by the Alaska Supreme Court (ASC)
shortly thereafter. She explained that this case is still
pending. She characterized the decision as a 15-page decision of
well-reasoned thorough analysis. The decision discussed the
right to vote and weighed it against the burden that was limited
to the pandemic by requiring two signatures. She was unsure if
any of the attorneys argued legislative intent. She said it is
difficult to research floor debate. She argued that the ruling
was based on the constitution. Even if the legislature wanted
something in place, the intention is not as prime in the
hierarchy of law as constitutional requirements if it offends
the constitution. She offered to discuss the case off the record
further.
2:07:35 PM
SENATOR HUGHES commented that KTOO provides recordings of the
Senate floor debates. She referred to the Alaska Supreme Court
15-page decision mentioned earlier. She asked if the decision
mentioned the constitutional provision that specifically stated
that the methods for absentee voting will be determined by law.
She further asked if the decision mentioned the Senate's vote on
that matter.
MS. MEADE offered to review the decision and report back to the
committee.
2:08:24 PM
SENATOR KIEHL asked how SB 14 affects currently seated
magistrates or if it only applies to vacancies. He specifically
asked what happens to the court system's ability to discipline
or fire magistrates. He offered his view that this bill would
change those functions.
MS. MEADE offered to research it and report back to the
committee in writing.
2:09:21 PM
CHAIR REINBOLD asked the record to reflect her interest in
checks and balances for the judicial branch. She remarked that
many people believe that political activism occurs in the court,
that the court lacks diversity in its opinions since many
decisions are unanimous. She referred to the ASC's decision
Senator Hughes mentioned. She said the governor has proposed
bills on election integrity. She asked if judges could testify
before the committee to answer questions.
MS. MEADE said that was not possible. She offered to explain
Judge Crosby's decision, but the decision speaks for itself and
provides the legal reasoning. She added that the official court
record consists of court filings and documents in writing. She
said that the court will not engage in extraneous comments,
explanations, or justifications on its decisions.
2:10:40 PM
CHAIR REINBOLD affirmed that someone will not come before the
legislative branch shows the lack of checks and balances as a
big concern. The legislative branch should be the most powerful
one.
CHAIR REINBOLD indicated she would like to meet with Ms. Meade
to further discuss some of her concerns.
2:11:40 PM
SENATOR SHOWER remarked that he expected opposition from the
court system. He referred to the ASC's decision on absentee
ballot signatures. He offered his view that the legislature's
intent was clear. He recalled that the court system historically
maintains it is unbiased and neutral. He questioned why this
neutrality does not extend to legislators' ability to vote to
confirm judges on their merits. He asked the reason why the
courts can make neutral decisions but the legislature cannot
make decisions on nominees without it "being a political
circus."
MS. MEADE said that judges have training, experience, and
adherence to the Code of Ethics. Judges are taught and trained
to apply the law to the facts of a particular case without
taking into consideration other matters. The Judicial Council
works to ensure that the nominees will not let personal views
affect their future decision-making during the appointment
process. The legislature, during confirmation hearings,
considers the political affiliation of nominees for boards and
commissions or cabinet members. She remarked that many votes are
along party or caucus lines. It is not that legislators do not
care about merit, but rather what happens in the legislature is
political. She said that it is allowed to be political and is
more or less designed to be political. Legislators are elected
to represent the politics and views of their constituents. These
views are tied to partisan and political issues, not in any
negative way, but one that reflects the inherent structure that
necessarily involves political considerations.
2:16:06 PM
CHAIR REINBOLD remarked that legislators are thoroughly vetted
and are on camera in the Capitol. She offered her view that the
confirmation process in SB 14 may provide more checks and
balances. In terms of Senator Hughes's concern, the committee
cannot rule out the potential of political vetting in the
selection process. She remarked that many lawyers have
complained to her about the hostile environment for
conservatives. She maintained her view that it does exist and
her intention to hold a hearing on political activism in the
court. She reiterated that many people believe that there is
activism in the court.
2:18:07 PM
CHAIR REINBOLD turned to the next invited testimony.
2:18:37 PM
SUSANNE DIPIETRO, Executive Director, Alaska Judicial Council,
Alaska Court System, Anchorage, Alaska, stated that SB 14 would
make fundamental changes to the way that judges are selected and
evaluated for retention. She explained that the merit selection
and retention process were adopted for supreme and superior
court judges in Alaska's Constitution as the best means to
ensure a nonpartisan and professional judiciary. In fact, one of
the drafters of the judiciary article said, "We are trying to
avoid the travesties which we have witnessed in some of the
states where judges are picked and plucked directly from the
ward political office."
MS. DIPIETRO advised that the Judicial Council was created to
play a key role in the selection of those judges by forwarding
only the most qualified applicants for appointment by the
governor. SB 14 would create a different selection procedure
with a gubernatorial appointment with legislature confirmation
for the Court of Appeals, District Court and magistrate judges,
which did not exist at the time the Alaska Constitution was
drafted. In deciding whether to change the judicial selection
process, it may be helpful to review how the council members
nominate the most qualified applicants.
MS. DIPIETRO said the Judicial Council's procedures are
transparent, thorough, and focused on merit. First, to achieve
transparency, the Judicial Council's procedures are posted on
its website and provided to all applicants. The Judicial Council
also publishes the criteria it uses for nominations. Second, in
terms of thoroughness, the Judicial Council members review
extensive and detailed information about each applicant's work
experience, life experience, skills, ethics, and commitment to
public service. The council members conduct a public hearing and
interview each and every applicant. This evaluation period takes
about six months. Third, the Judicial Council evaluates each
applicant against merit-based criteria, including professional
competence, diligence, administrative skills, integrity,
fairness, temperament, common sense, legal and life experience,
demonstrated commitment to public service, equal justice, and
the legal needs of the diverse communities of Alaska. She said
that the Judicial Council members are specifically and
explicitly not allowed to consider an applicant's religious or
political affiliation.
MS. DIPIETRO said another hallmark of the Judicial Council's
process is collegiality. Members deliberate independently and as
a group and each member is given equal time to share his/her
thoughts about each applicant. Given the rigor of the Judicial
Council's process, it is not surprising that members most often
agree about which applicants are most qualified, she said. She
reported that 83 percent of all Judicial Council votes are
unanimous or unanimous but for one. The Chief Justice
historically has participated in only 5 percent of all votes and
it is even rarer for a Chief Justice to break a tie between the
attorney and non-attorney members. She reported that tiebreaker
votes have happened in less than one percent of all votes or
only nineteen times in over 35 years.
2:22:17 PM
MS. DIPIETRO reviewed the changes in SB 14 for magistrates. This
bill would require the council to screen, interview and nominate
additional applicants for magistrates each year. She anticipated
this would likely require more targeted outreach to attract
attorney and non-attorney applicants for magistrate positions
since those positions can be difficult to fill.
MS. DIPIETRO turned to the changes to evaluation of judges
standing for retention. The bill would transfer these duties to
the Commission on Judicial Conduct (CJD). The Judicial Council
has been evaluating judges since 1975. The council's approach
relies in significant part on reviews from court users,
including law enforcement officers, probation officers, jurors,
court employees and members of the public and social services
professionals. The council investigates judges' published
opinions, any ethical problems, disqualifications from cases,
compliance with financial and other disclosure laws,
professional activities and if a judge's paycheck has been
withheld for untimely decisions. This information, along with
the council's recommendation on retention is provided directly
to the public via the council's website. It is summarized in the
lieutenant governor's official election pamphlet.
MS. DIPIETRO reported that in the past several decades court
users have given increasingly positive reviews of judges'
performances in surveys of attorneys, law enforcement and
probation officers. She acknowledged that court users have
reported significant problems with a judge or the Judicial
Council's investigation has revealed negative performance or
ethics issues in rare instances. In those instances, the
Judicial Council publicizes the negative information and when
warranted it has recommended non-retention of a judge, she said.
2:24:38 PM
MS. DIPIETRO said that the council monitors the connection MS.
DIPIETRO said that the Judicial Council monitors the connection
between the nominees who are appointed and their performance
while serving on the bench to ensure that its process continues
to be based on merit and is nonpartisan. She related that the
Judicial Council members come from all walks of life, bringing
many different perspectives and experiences to the council.
Despite their apparent differences, the principle that unites
them is an unwavering focus on promoting a fair, impartial, and
professional judiciary in Alaska.
2:25:16 PM
CHAIR REINBOLD acknowledged that she has seen diversity on the
Judicial Council.
2:25:35 PM
SENATOR SHOWER asked how the court system can justify that a
trade association has the ultimate ability and authority to pick
judges. He related that the Alaska Bar Association is allowed to
select judges. He further remarked that 19 times in 35 might not
seem like much, but the public did not have any input in all
those instances. He expressed concern that this does not provide
any crosscheck by the public.
MS. DIPIETRO answered that the constitutional founders set up
the structure. She said the drafters held discussions on who
would serve on the Judicial Council. First, the drafters wanted
to have three attorney members because they would know "who was
good and who was not." The attorneys would need to practice
under these judges, so the reasoning was that these attorneys
would select good judges. She said that the Alaska Bar
Association is created by law and undergoes a sunset review
periodically, so the legislature is involved in that process.
She clarified that the 19 times that a Chief Justice voted was
19 of over 1,400 votes over a 35-year period.
2:29:01 PM
SENATOR KIEHL referred to the 19 tiebreaking votes. He asked in
how many instances that the nominee supported by the attorney
members and the Chief Justice was the governor's only choice. He
also asked for the number of times all of the nominees forwarded
to the governor were selected by only the attorneys and the
Chief Justice. In terms of the impact of SB 14, he asked for the
comparative workload to screen a judge or magistrate for
selection versus screening for retention and how that would
affect the Commission's workload. He expressed a willingness to
receive the response in writing.
2:30:26 PM
CHAIR REINBOLD said legislators are held responsible by their
constituents. She maintained her position on the lack of checks
and balances for the judiciary and the lack of an adequate
response. She remarked that it is easy to be collegial when
friends choose the judicial nominees and when the Chief Justice
can provide a backup vote. She characterized it as an
environment that works in many cases but it also has its
challenges. She asked if deliberations for judicial selection
and retention are entirely open to the public. She requested
copies of surveys from the past five years or something similar.
MS. DIPIETRO deferred to Ms. Greenstein to discuss the code of
ethical conduct. She related that during the selection of
judges, the Judicial Council holds public meeting, and an
administrative agenda, which is also open to the public. She
related that any applicant could request to hold their interview
in public, which routinely happens. For judicial retention, a
statewide teleconferenced public hearing occurs via the
legislative information system. She characterized this as a
critical component of the evaluation of judges.
2:33:27 PM
CHAIR REINBOLD asked again if all proceedings are open to the
public.
MS. DIPIETRO, after first clarifying the question, answered that
significant portions of the processes are open to the public and
are posted to the council's website. She listed the materials.
In further response to Chair Reinbold, she answered that the
deliberations of the council are not open to the public.
2:34:37 PM
CHAIR REINBOLD turned to invited testimony.
2:35:20 PM
WES KELLER, representing himself, Wasilla, Alaska, said the
judiciary must work with the other two branches of government
and reflect the value of the voters. He acknowledged that some
level of politics occurs in the legislative process. He opined
that the legislature has not used its authority clearly given in
the Alaska Constitution to shape the judiciary. He suggested
that SB 14 will move that needle a little.
2:37:40 PM
MR. KELLER expressed concern that problems exist. He read an
excerpt from the fifth edition of the Guide to the Alaska
Constitution on page 93, Article 4, which defines the judiciary
as follows, "The judiciary is flexible and gives the legislature
wide latitude to expand and shape the system to meet the needs
of the state. The delegates anticipated the future by
authorizing the legislature to expand the court system by adding
judges and creating new courts."
2:39:59 PM
SCOTT OGAN, Staff, Senator Mike Shower, Alaska State
Legislature, Juneau, Alaska, said the court system suggested
that this bill would undermine the independence of the
judiciary. Still, some might argue that the judiciary is too
independent with little accountability. He said the same system
of evaluating judges is done by the people who nominated them.
He argued that the Commission on Judicial Conduct (CJC) was a
more appropriate body to review judges since it holds hearings
and adjudicates complaints. The CJC can recommend the Alaska
Supreme Court on the removal of judges. He related that the
Commission consists of six lawyers, three appointed by the Chief
Justice, and three are subject to confirmation by the
legislature. The CJC also has three public members. He suggested
that it is more appropriate for the people who take complaints
to evaluate judges' nominees.
2:41:56 PM
MR. OGAN said that the Alaska courts would be more like the
Washington, D.C. model under the bill, implying that the entire
judiciary would be subject to the legislature's whim. He
characterized the bill as changing a small segment related to
the appellate courts, which have authority over criminal matters
and for magistrates. The constitution says that all power is
derived from the people. However, the Judicial Council and the
Alaska Bar Association is the one "carve out." He expressed
concern with the nomination process since the governor must
select from the names the Judicial Council forwards. The litmus
test would require nominees to follow the constitution,
statutes, and regulations and strictly interpret them. He said
he hoped every judge would do so. He did not understand why that
would be an issue. In closing, he remarked that he talked to
several conservative lawyers but they declined to testify. He
surmised that these attorneys would not have declined to speak
up if the judiciary were so impartial.
2:43:45 PM
SENATOR KIEHL asked to hear from the Commission on Judicial
Conduct since the bill would affect the Commission.
CHAIR REINBOLD answered that Ms. Greenstein would be testifying
next.
2:44:51 PM
MARLA GREENSTEIN, Executive Director, Commission on Judicial
Conduct (CJC), Anchorage, Alaska, said that she has held the
position since 1989. She has worked closely with the Alaska
Court System and the Judicial Council. The CJC and Judicial
Council have adapted and adopted procedures to complement one
another and streamline their functions. She said the major
changes proposed in SB 14 would change how the CJC conducts its
business.
2:45:56 PM
MS. GREENSTEIN said the CJC is charged with enforcing the code
of judicial conduct, which is the code of ethics for the
judiciary. The CJC is composed of nine members, consisting of
three judges, three attorneys and three public members. These
members each bring a unique and important perspective in
analyzing ethical issues that come before the CJC. The CJC meets
four times a year. The office consists of a two-member
administrative staff but it can hire outside counsel since it is
an adjudicative body. The office investigates complaints, and
the nine-member CJC sits to adjudicate the complaint. Outside
counsel is hired to present the matters to the CJC.
2:47:39 PM
MS. GREENSTEIN said another function she provides is responding
to judges and providing ethical advice. She explained that
judges know they can call or email her with questions. Her
response is timely because judges often must determine if they
must recuse themselves from taking cases. Judges may be asked to
speak to a group and need to know if it is appropriate to do so.
She characterized this as an important function. She said she is
proud that the CJC has earned the trust of the judges. Judges
know they can be forthright and that the matters will be held in
strict confidence. She highlighted one fear of taking on the
retention function: it could jeopardize that informal trust and
guidance. It may appear that the CJC already performs
evaluations. The constitutional name of the CJC was the Judicial
Qualifications Commission, but the name was changed because it
did not accurately reflect the commission's work. Instead, the
Commission on Judicial Conduct performs ethics enforcement and
ethical guidance but it does not conduct job evaluations. Job
evaluations consist of a very different type of process.
MS. GREENSTEIN estimated that if the Commission were to do
judicial retention evaluations, it would require two additional
staff and additional office space and one additional meeting per
year. In addition, the legislature obviously separated out the
judicial retention and judicial ethics functions. One provision
in the governing statute states that no member can
simultaneously sit on the Commission on Judicial Conduct and the
Judicial Council. Thus, she said there was some awareness of the
need for separate functions.
2:51:17 PM
SENATOR SHOWER asked if her concern with SB 14 was with
additional costs to her agency to accomplish the evaluations.
MS. GREENSTEIN answered that the resources she referred to
related to the evaluation for retention. She estimated that
adding the ethical responsibilities for magistrates would not
require an additional fulltime position. She explained that she
developed the costs based on the retention evaluation. She
suggested that if the CJC only had to consider magistrates'
ethical responsibilities, it would likely require one additional
part-time staff since it would almost double the number of
judges whose ethics the agency would oversee. She anticipated
that it might result in more frequent disciplinary hearings.
SENATOR SHOWER offered to follow-up with Ms. Greenstein on this
issue.
2:53:02 PM
CHAIR REINBOLD asked that the estimates be provided to the
committee. She also asked her to provide the Code of Ethics for
magistrates to the committee. She expressed an interest to have
the committee attend a Commission on Judicial Conduct (CJC)
hearing.
MS. GREENSTEIN pointed out that each of the CJC meetings has a
public component. The CJC has been holding Zoom meetings. She
agreed to arrange for the committee to attend the public portion
of the CJC meeting.
2:54:57 PM
FRITZ PETTYJOHN, representing self, Anchorage, Alaska, stated
that he is a former legislator and has been a member of the
Alaska Bar Association (ABA) since 1974. He questioned why the
ABA has control over the judicial system in Alaska. He offered
his view that the lawyers who wrote the Alaska Constitution were
"feathering their own nests" to ensure control over the judicial
branch. He asserted that it has been a profitable arrangement.
He disagreed that one professional association should have that
power. He stated that SB 14 is an advancement, but in order to
fully address the issue it would require an amendment to the
constitution, which would require a constitutional convention.
He urged members to consider that option seriously.
2:56:55 PM
INDA HOLMSPROM, representing self, Anchorage, Alaska, spoke in
support of SB 14. She expressed concern that currently, the
governor fills positions to the Court of Appeals and District
Courts by selecting from a small list of nominees submitted by
the Alaska Judicial Council. This bill would allow the governor
to select any attorney who meets the legal qualifications. She
emphasized that this would allow elected officials representing
their constituents to have a voice rather than unelected members
of the Alaska Judicial Council. She expressed concern over
political activism in the courts.
2:59:55 PM
KENNETH JACOBUS, Attorney, representing self, Anchorage, Alaska,
said he has been an attorney in Alaska for over 50 years. He has
carefully observed the process and has seen it improve over the
years. He offered his view that it is the best it's ever been.
He suggested several changes to the bill. First, he did not
support moving the nomination process from the Judicial Council
to the Commission on Judicial Conduct. The CJC deals with the
judges once they are serving on the bench. He suggested that
doing so would confuse the whole system. Secondly, he suggested
going through the selection process but adding legislative
confirmation in joint session just as the federal approval
process requires. Finally, he recommended removing language in
SB 14 that states that the Judicial Council can submit a
candidate's name only if the Judicial Council determines that
the judicial candidate understands and is committed to a strict
constitutional interpretation of statutes and regulations and
adhering to legislative intent. He said the legislature should
not set up political standards for what the judge will decide,
especially since the interpretation of statutes and regulations
is not necessarily under strict scrutiny. He said, "That's bad.
You can't select a person unless the person's beliefs are a
certain way or he is going to construe the law in a certain way.
That's not our job to tell the judge what he is supposed to do,
what sort of decisions are supposed to be made when they are on
the bench." He said he agreed with Mr. Pettyjohn that it is most
important to have legislative oversight over the Superior Court
and the Alaska Supreme Court, so a constitutional amendment is
necessary.
3:02:43 PM
SENATOR SHOWER offered to speak to him about his suggestions. He
expressed a willingness to hear suggestions to improve the bill.
He remarked that many of the testifiers pointed out that the
constitution is a well-vetted document. If so, the authority
granted in the Alaska Constitution to the legislature for
oversight should also be good, he said.
CHAIR REINBOLD said that public testimony will be kept open. She
welcomed testimony at sjud@akleg.gov.
[SB 14 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 14 - Sponsor Statement.pdf |
SJUD 2/12/2021 1:30:00 PM |
SB 14 |
| SB 14 Bill.PDF |
SJUD 2/12/2021 1:30:00 PM |
SB 14 |
| SB 14 Sectional Analysis.pdf |
SJUD 2/12/2021 1:30:00 PM |
SB 14 |
| SB 14 ACJC Brochure.pdf |
SJUD 2/12/2021 1:30:00 PM |
SB 14 |