Legislature(2001 - 2002)
04/04/2002 03:55 PM Senate STA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS COMMITTEE
April 4, 2002
3:55 p.m.
MEMBERS PRESENT
Senator Gene Therriault, Chair
Senator Randy Phillips, Vice Chair
Senator Rick Halford
Senator Bettye Davis
MEMBERS ABSENT
Senator Ben Stevens
COMMITTEE CALENDAR
SENATE BILL NO. 159
"An Act relating to retention elections for judges of the court
of appeals."
MOVED CSSB 159(STA) OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 43
Requesting the United States Congress to grant a two-year
moratorium on requirements for certain state payments under
federal programs.
MOVED CSSJR 43(STA) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
SB 159 - See State Affairs minutes dated 5/05/01.
SJR 43 - No previous action to record.
WITNESS REGISTER
Senator Dave Donley
Alaska State Capitol, Room 506
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 159 and introduced SJR 43
Larry Cohn
Executive Director
Alaska Judicial Council
1029 W. Third Ave Suite 201
Anchorage, AK 99501-1981
POSITION STATEMENT: Testified on SB 159
Ray Brown
AK Academy of Trial Lawyers
510 L Street # 603
Anchorage, AK 99501
POSITION STATEMENT: Testified on SB 159
Chris Christensen
Deputy Administrative Director
Alaska Court System
820 W. 4th Ave
Anchorage, AK 99501-2005
POSITION STATEMENT: Testified on SB 159
ACTION NARRATIVE
TAPE 02-02-18, SIDE A
CHAIRMAN GENE THERRIAULT called the Senate State Affairs
Committee meeting to order at 3:55 p.m. Present were Senators
Phillips, Halford and Chairman Therriault. Senator Davis arrived
momentarily.
SB 159-APPEALS COURT JUDGES RETENTION
CHAIRMAN THERRIAULT reminded committee members that the bill was
initially heard during the 2001 session. He called attention to
the committee substitute (CS) in members' packets.
SENATOR DAVE DONLEY said he supported the proposed CS. It changed
the original legislation from four year terms to six year terms,
which is consistent with the data they collected during the
interim.
CHAIRMAN THERRIAULT said previous testimony showed a difference
in interpretation of the data presented last session and he told
the court representative, Mr. Christensen, they want to review
the difference in opinion on how Alaska judicial terms compare to
those of other states. He asked Senator Donley whether he had
read the letter from the court system dated March 28, 2002.
SENATOR DONLEY replied he had not read the letter.
CHAIRMAN THERRIAULT announced they would take testimony while
Senator Donley read the letter.
MR. LARRY COHN, Executive Director of the Alaska Judicial
Council, testified via teleconference. He said he hadn't seen the
CS, but he understood it proposes a six-year term of retention
versus the original four-year term. He said his remarks were
applicable to the CS as well.
The Judicial Council evaluates judges standing for retention and
they also conduct interim evaluations of judges two years prior
to the retention elections. Their system of performance
evaluation is used throughout the country and their review
process surveys about 10,000 Alaskans including attorneys,
jurors, police, probation officers, social workers, court
employees and independent court watchers. They also solicit
public comments and conduct public hearings. They look at all
aspects of judicial performance then disseminate that information
in the election pamphlet that is distributed to every Alaskan
household, on the Internet and other more traditional forms of
media.
In 1999 the American Judicature Society published a study that
reviewed 20 years of the council's efforts to provide the Alaska
public with information upon which they could make informed
decisions. The study made it clear that voters use the
information provided by the Judicial Council. It compared each
judge's performance rating with his or her proportional numbers
of do retain votes and found there was a statistically
significant correlation. Nearly 80 percent of voters interviewed
in their 1996 exit poll believed that the availability of the
council's evaluation information helped to make Alaskan judges
more accountable.
The evaluation process in Alaska is a very effective means of
ensuring judicial accountability. It is working as intended with
the current eight year appellate court retention period. For the
years 1984-2000, attorneys gave appellate court judges an average
rating of excellent for legal ability, impartiality, integrity,
temperament, diligence, and overall performance. In the 2000
retention election, appellate court judges again received the
highest overall rating of excellent from court employees.
Largely because of the work of the court of appeals, criminal law
is now well established in Alaska as reflected in the high
appellate affirmance rates of trial judges, which compare
favorably to national standards and a trend of improved appellate
affirmance rates for trial court judges in criminal cases.
Criminal law, which is the jurisdiction of the appellate court,
is particularly susceptible to public sentiment. More frequent
retention elections could mean more susceptibility to public
sentiment to the detriment of the standards established by the
Appellate Court and the measure of the criminal justice system.
The jurisdiction of the court of appeals already limits the
number of qualified applicants and a shorter retention term could
well reduce interest in applying for those positions. This is the
court of last resort in over 95 percent of criminal cases because
the Supreme Court grants few hearing petitions.
He noted the fiscal note was based on the four year retention so
passage of the CS would require a small adjustment.
The proposed legislation is not necessary and there is the
potential that it would cause more risk to the criminal justice
system than benefits.
There were no questions for Mr. Cohn.
MR. RAY BROWN, the Alaska Academy of Trial Lawyers
representative, testified via teleconference against passage of
SB 159. He said there has never been a sitting Alaskan appellate
judge that has not been retained. This is a very conservative
judiciary that is narrow in interpretation of state and federal
constitutional law and that has a high degree of affirming the
trial court level decisions.
Although he spent many years as a criminal defense lawyer, he
does almost no criminal law now so passage of the legislation
will have little impact on him. Defendants whose convictions are
affirmed and a small group of criminal defense attorneys who
don't like the decisions the court rendered are the most frequent
critics of this court. The three appellate court judges are well
thought of and very well qualified.
His primary concern is stare decisis or continuity of decision
because there must be some predictability in terms of litigating
cases as a criminal defense lawyer or a prosecutor. The court of
appeals decides some very important constitutional issues when
interpreting state and federal law. Among those primarily
involved are the Fourth, Fifth, Sixth and Eighth Amendments to
the U.S. Constitution and the state counterparts. The Fourth
Amendment deals with search and seizure, the Fifth Amendment with
due process and the right to remain silent, the Sixth Amendment
is the right to counsel and the Eighth Amendment is the right to
bail. Continuity in the Fourth and Fifth Amendment cases is
particularly important and the longevity of court of appeals
judges and the longevity of their decisions are paramount for
attorneys practicing before the trial courts and law enforcement
officers.
He didn't understand why Senator Donley introduced the
legislation; nothing needs to be fixed because nothing is broken.
The system has worked well.
CHAIRMAN THERRIAULT asked Senator Donley if he wanted to comment
on the letter from the Alaska Court System or did he prefer that
Mr. Christensen testify first.
SENATOR DONLEY wanted Mr. Christensen to testify first.
MR. CHRIS CHRISTENSEN, Deputy Administrative Director of the
Alaska Court System, explained that Alaska has a rigorous merit
based system for the selection of judges. The Constitution
framers fashioned a system that provided independence and
accountability while being as non-partisan as possible and
required judges to stand for retention on a regular basis.
The system has worked well over the years and there is no history
of official corruption. They have attracted many smart and hard
working attorneys who are very committed to their work. They
dispose of over 150,000 cases every year and in a typical year
three or fewer of those cases cause any controversy. He asked the
Chairman to consider the fact that if he didn't like 15 decisions
made in any one year, that would represent one one-hundredth of a
percent of their total caseload. It's unfortunate that that level
of satisfaction has prompted proposals in recent years to change
this system.
Judicial independence is the ability to judge a case and to
interpret and apply the law as free as possible from external
influences and pressures. That is what the court of appeals does
now and SB 159 is intended to reduce that ability by making
judges face voters at shorter intervals. Shorter intervals make
it more likely that political campaigns would be waged against
judges because of a single unpopular decision. Longer terms would
give voters a longer term perspective on a judge's job
performance.
If a judge publicly announced that he was going to do a public
opinion poll in a case and base his decision on the results,
people would probably be outraged. However, he thought that is
fundamentally what this bill is about. The bill sponsor has
suggested that the retention term of Alaskan appellate court
judges is longer than the national average. Last year they
pointed out that the data submitted by the sponsor was flawed in
a variety of ways. At the committee's request he reviewed the
data a second time and got the latest data from the National
Center of State Courts and the American Judicature Society. That
data agreed with the data submitted by the sponsor in about three
quarters of the cases. When it didn't agree he went to a court
system's web site or a state's constitution or statutes to
determine who was correct. While the sponsor's staff found 32
states with a court of appeals, there are, in fact, 39. Eighteen
of those states have a merit-based system while 21 have a non-
merit based system. The latter are either contested elections or
direct appointment by either a governor or a legislature.
Alaska's eight-year term is almost exactly average. The average
for the merit-based states is 7.9 years and the average for the
non-merit based states is 7.8 years. If the basis for the
proposed legislation is that Alaska's court has a longer term
than average then it's not an accurate statement.
Every litigant should have confidence that his or her case will
be heard on the merits and not on the basis of public or
political pressure. Law commands allegiance only if law commands
respect. It can only command respect if the public believes
judges are neutral when they are deciding criminal cases.
Ultimately, judicial independence is not for the benefit of the
judge, it is for the benefit of the public.
Last year there were over 100,000 cases that were within the
appellate court jurisdiction. A relatively small number were
felonies, most were misdemeanors and violations of ordinances.
Anyone who has ever been careless or exhibited a lapse in
judgment could end up in criminal court. Criminal convictions
have very real consequences and can result in the loss of
reputation, loss of a job, loss of freedom or loss of savings.
With this in mind, ask yourself whether you would want a criminal
court judge to make an important decision about your life to base
that decision on his best interpretation of the law or on the
political and personal consequences that face him if he issues an
unpopular decision.
SENATOR PHILLIPS didn't think the founding fathers foresaw having
an appellate court when the Constitution was established in 1958.
MR. CHRISTENSEN explained the founding fathers created the
superior court and the supreme court. They created a retention
term of six years for the superior court and ten years for the
Supreme Court. In the Constitution, they stated that the
Legislature could create additional courts because they knew
there would be the need to create additional courts. The
Legislature quickly created a district court and then waited 20
years to create a court of appeals. When the Legislature did
that, it gave that court a retention term that fit within the
scheme that already existed, ten years for the supreme court,
eight years for the court of appeals, six years for the superior
court and four years for the district court. The appellate court
has a longer retention period because judicial independence is
more important at that level. The Legislature decided on the
eight-year term for the court of appeals because that was the
national average.
SENATOR PHILLIPS averaged the retention terms for merit and non-
merit western states at six and one-half years. He said he
related to the west coast more than the east coast.
MR. CHRISTENSEN replied the bill sponsor said the national
average was appropriate and he was simply pointing out that while
the national average is appropriate, it's not what the sponsor
thought it was. He noted that many of the western states use
partisan elections, which is a system he doesn't believe should
be held as a model.
Another point he thought should be noted that was not reflected
in the statistics is that not only is Alaska's retention term at
the national average of eight years but it also has a two tier
process. When first appointed, a judge stands for initial
retention at the first election held more than three years after
assuming office. Most states don't have this two-tier term.
Generally, a judge serves the same amount of time in the first
term as in all subsequent terms. For most of the states with a
shorter term than Alaska, that is their first term not the
initial term, which makes their term longer that Alaska's.
SENATOR HALFORD asked how many states have appointment by the
Governor with discretion between a list of people and with no
confirmation by either body of the Legislature or any other
entity.
MR. CHRISTENSEN didn't know the exact answer but did know there
are 18 states that have some type of merit selection system. In
all of those it is appointment by the Governor. The data provided
by Senator Donley's staff lists two court of appeals that are in
states that have legislative confirmation of a merit appointment,
but he didn't know whether that was accurate.
CHAIRMAN THERRIAULT asked about the corrections Mr. Christensen
made to the sponsor's data.
MR. CHRISTENSEN said he made corrections to the data that made
his point as well as corrections that worked to the sponsor's
advantage.
SENATOR DONLEY stated he believes the combination of the term of
office plus the lack of accountability that comes from neither
confirmation nor direct election makes the eight-year term for
the appellate court excessive. He thought six years was
reasonable. He said he feels very confident that if the average
Alaskan citizen were asked, they would like the opportunity to
vote on judges more frequently so they are more accountable to
the election process.
He restated his concern regarding the combination of length of
time and type of retention system. The data provided for the
initial hearing dealt with the merit states and didn't look at
the numbers in the other states. When you look at it from the
point of view of time in office and over all accountability, he
thought the weight of evidence is persuasive that a six-year term
is appropriate when there is no confirmation process or an
election process. He accepted the new data but didn't think that
it led to the same conclusion that the court system announced and
he didn't think it refuted his concern about the combination of
the two points.
CHAIRMAN THERRIAULT called for questions from committee members.
SENATOR DAVIS asked for the basis for his belief that the public
would like to see this change. She said she hasn't received any
letters that reflect dissatisfaction with the current system or
the retention terms and she saw no letters to that effect in the
bill packet. The information she read indicated this is what he
believes and not necessarily what the public might want.
SENATOR DONLEY said he could try to find the resources to conduct
a public opinion poll but he feels confident from his discussions
the public would like the opportunity to vote. He compared it to
the elected attorney general issue and said a majority of
Alaskans have repeatedly said they want the opportunity to elect
their attorney general; they like to have elected officials. He
said Alaska has the fewest elected officials of any state in the
union. Citizens in every other state but one have the opportunity
to elect more of their public officials. Public opinion polls in
Alaska indicated voters like the opportunity to elect their
officials and he though they would like to do so more frequently
in this case. He thought he could find some polling data to
support his opinion.
SENATOR DAVIS replied that might be the case, but bill sponsors
usually present lists of people that support their legislation
and she sees none of that for this bill. With regard to his
statement that the public often says they would like to elect
their officials, she said she has been in the state long enough
to know that if the public wanted to do that then that's the way
it would be done. She knows there are people that support the
sponsor's view on the issue, but she doesn't know that the masses
support his view.
SENATOR DONLEY said if that were true then the attorney general
would now be elected. He thought that every public opinion poll
shows very strong support for an elected attorney general in
Alaska. This hasn't happened because it's hard to get change in
the system. Even if a majority of the people support a particular
thing, the system is designed to require a super majority to get
major or systemic changes accomplished.
SENATOR DAVIS said perhaps she should have stated it differently
because she hasn't heard the public discuss the topic or heard
that they are calling Legislators and trying to get the issue on
the ballot. She said it hasn't happened in the thirty years she
has been in Alaska.
SENATOR DONLEY replied, "…it tends to be the people who have an
interest in the system who are rating the system and not just the
average citizen." Having attorneys rate judges isn't the most
objective and accurate means of the rating because it's very hard
to criticize our judiciary. "I have people talk to me quite
frequently that really want to remain anonymous because they
don't want retribution… They're willing to come to me and tell me
things but when I ask them to come forward and talk about it they
say, 'No, I don't want some judge mad at me.' They're scared of
that. I make my living practicing law; you think I want to make
judges mad at me? Of course not, I just really believe the public
deserves an opportunity to have some accountability at a higher
degree than this state currently presents for our judiciary."
SENATOR DAVIS asked for the makeup of the Alaska Judicial Council
and whether it was comprised of a majority of attorneys.
MR. COHN replied it has three attorneys, three non-attorneys and
the Chief Justice of the Supreme Court who sits as chairman and
ex officio. He only votes in the case of a tie when the council
must make a decision.
SENATOR PHILLIPS asked whether the Chief Justice is an attorney.
MR. COHN replied he is an attorney.
SENATOR PHILLIPS said that means there are four attorneys and
three non-attorneys on the council.
CHAIRMAN THERRIAULT asked if he heard correctly that adoption of
the CS would increase the fiscal note.
MR. COHN replied the CS would reduce the size of the fiscal note
and he could submit a revised fiscal note to show the impact of
the CS.
CHAIRMAN THERRIAULT announced there was the prepared State
Affairs CS and he had no amendments to that CS. He asked whether
there were any amendments from committee members.
SENATOR DAVIS said she did not have an amendment but she would
like to see a copy of the fiscal note.
CHAIRMAN THERRIAULT asked for the will of the committee.
SENATOR PHILLIPS made a motion to move CSSB 159(STA) and
accompanying fiscal note from committee.
CHAIRMAN THERRIAULT said there should be a notation that the
fiscal note will be adjusted to reflect the change.
SENATOR DAVIS objected to the motion.
CHAIRMAN THERRIAULT asked Senator Davis whether she wanted to
speak to her objection.
SENATOR DAVIS said she believed the sponsor was very sincere
about what he thought needed to be done. However, she did not see
the need for the change and didn't believe the balance should be
upset without more input. The information the sponsor presented
didn't convince her that it was the right thing to do. Perhaps
she could support the issue at a later time but she didn't have
enough to convince her that the status quo wasn't working because
she hasn't heard expressions of dissatisfaction and the retention
terms in Alaska aren't that different from those of many other
states. The current balance could be upset if judges had to stand
for retention election more frequently. Sometimes having
individuals in public office for longer periods of time is
helpful because they grow as they serve.
CHAIRMAN THERRIAULT called for a roll call on the motion to move
the bill from committee with individual recommendations.
Senator Phillips, Senator Halford and Chairman Therriault voted
yea and Senator Davis voted nay.
CSSB 159(STA) moved from committee with individual
recommendations. A revised fiscal note would be provided to the
next committee of referral.
SIDE B
4:45
SJR 43-MAINTENANCE OF EFFORT ON FEDERAL PROGRAMS
SENATOR DONLEY explained a maintenance of effort requirement is a
condition that comes with some federal funding programs and says
that if a state were to reduce spending on a particular program
then there may be a reduction in the amount of federal funds
received. The maintenance of effort requirements are not all the
same, which state budgets that are heavily dependent on those
federal funds.
It is challenging for states to do their best based on the
highest and best need in any given year because even though a
state wanted to prioritize a different level of funding in a
different program, the maintenance of effort requirements may
inhibit that because of the potential loss of federal funding.
This entices the state to continue funding at a level that may
not be the most appropriate level in that particular year.
The resolution requests the United States Congress to grant a
two-year moratorium on the maintenance of effort requirements for
those states receiving federal funds. States could therefore
adjust their budgets without being fearful of losing federal
funds.
CHAIRMAN THERRIAULT asked Senator Donley whether he thought
copies should be sent to every state governor or to the heads of
the legislature in every state to alert them and try to build
nation wide support.
SENATOR DONLEY thought copies should be sent to the legislative
leadership since they would be the ones to adopt similar
legislation if they thought it meritorious. He also thought
informing the National Conference of State Legislators (NCSL) and
other national organizations of legislatures would be a good
idea.
CHAIRMAN THERRIAULT asked him to verify that this would give
states a period of time in which they could adjust their spending
to suit their particular situation after which they could
establish a new level for maintenance of effort.
SENATOR DONLEY replied that was the idea.
SENATOR PHILLIPS asked Chairman Therriault whether he wanted a
conceptual amendment.
CHAIRMAN THERRIAULT replied he did.
SENATOR PHILLIPS made a motion to adopt a conceptual amendment to
send the resolution to the presiding officers of each of the 49
states.
CHAIRMAN THERRIAULT said generic language would be used so each
recipient wouldn't necessarily be named.
There being no objection, Amendment #1 was adopted.
SENATOR PHILLIPS asked whether he wanted to include NCSL.
CHAIRMAN THERRIAULT thought it might be best to send them an
explanatory letter from the Finance Committee with the resolution
attached.
SENATOR DONLEY said that was acceptable to him.
SENATOR PHILLIPS made a motion to move CSSJR 43 and attached
fiscal note from committee with individual recommendations.
There being no objection, CSSJR 43(STA) moved from committee.
ADJOURNMENT
There being no further business before the committee, the Senate
State Affairs Committee meeting was adjourned at 4:55 p.m.
| Document Name | Date/Time | Subjects |
|---|