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