Legislature(2021 - 2022)BUTROVICH 205
02/03/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB14 | |
| Overview: Disaster Declaration - Extensions & Liability Related to Covid-19 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | SB 14 | TELECONFERENCED | |
SB 14-SELECTION AND REVIEW OF JUDGES
1:38:24 PM
CHAIR REINBOLD announced the 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."
1:38:44 PM
CHAIR REINBOLD recognized Senator Holland.
1:39:47 PM
SCOTT OGAN, Staff, Senator Mike Shower, Alaska State
Legislature, Juneau, Alaska, introduced himself.
1:40:00 PM
SENATOR SHOWER introduced SB 14. He read the sponsor statement,
as follows [Original punctuation provided]:
Alaska's constitution is clear, Superior Court Judges
and Supreme Court Justices must be vetted by the
Judicial Council and the Governor can only select from
a list of two or more submitted by the Judicial
Council. However, the Constitution also left the door
open for legislative discretion with jurisdictional
issues with how Appellate Court and magistrates are
selected and how all judges are screened. Currently,
the Judicial Council prescribes 100% of the screening
criteria. One section of this bill gives direction to
the Judicial Council on that subject.
Currently, Magistrates serve at the discretion of the
Chief Justice, and Appellate Court Judges are
nominated in a statute defined process that mirrors the
Constitutional Judicial Council process. The Judicial
Council is structured to give a permanent majority of
Bar members the control of who gets to be a judge or
Justice. Additionally, judge's names are subject to a
Bar member-controlled prescreening process. Bar
members are appointed internally by the Bar with no
legislative or administrative oversight. Non-Bar
members (the public) are in a minority position to
influence final decisions.
1:41:26 PM
SENATOR SHOWER remarked that this essentially meant that three
attorneys and three non-attorneys, with the Alaska Supreme Court
justice acting as tie-breaker, could make the final decision or
basically that four attorneys make the final decisions on
judges.
1:41:43 PM
SENATOR SHOWER continued to read the sponsor statement:
Senate Bill 14 strikes more of a balance in letting the
governor and the people have a small say in who sits in
judgment on the bench when they appear before them. It
allows the governor to appoint and the legislature to
confirm who fills magistrates and appellate judges. It
still allows the JC to recommend candidates, but the
governor does not have to appoint them. The governor
can appoint his own appellate judges.
1:42:05 PM
This bill also takes the judicial retention rating
process from the Judicial Council, and gives it to the
Commission on Judicial Conduct, as the Judicial
Council ratings tend to be noncritical. The CJC
receives complaints about judges, and they are the
best qualified to rate them.
With judicial elections deemed "nonpartisan" virtually
no political effort or mechanism to mount such effort,
is ever directed toward educating the public about
activist judges during their retention election.
A conflict of interest may arise with evaluating
attorneys because when lawyers on the Council rates a
judge with a critical rating, will that lawyer ever
get a fair hearing before that judge? It has to be a
factor in the backs of their minds.
The sponsor respectfully suggests that lawyers may
have a conflict of interest when they rate judges for
retention. The Sponsor also very respectfully suggests
that a better group to write reviews of a judge's
performance would be the Commission on Judicial
Conduct. They are the people that field complaints
about judges. Critics of this legislation will say it
politicizes the process. But with recent rulings
affecting political races, that ignore or nullify
clear legislative intent, there is little doubt the
justice process is politicized and needs some balance
from the representatives and governors that the people
elect.
1:43:42 PM
At ease
1:44:15 PM
CHAIR REINBOLD reconvened the meeting. She said she was having a
hard time hearing the sponsor's testimony. She said people must
socially distance themselves in committee, but she will allow
people to remove their masks.
SENATOR SHOWER agreed to remove his mask. He asked if he should
repeat his testimony, but no one answered.
1:45:06 PM
MR. OGAN read the sectional analysis for SB 14.
[Original punctuation provided:
Section 1. Amends AS 15.15.030(10) by adding
magistrates to the nonpartisan ballot designed for
each judicial district in which a justice, judge, or
magistrate is seeking retention.
Section 2. Amends AS 15.35.100 by making magistrates
subject to retention election.
Section 3. Amends AS 15.35.110 by requiring a
magistrate seeking retention to file a declaration of
candidacy for retention.
Section 4. Amends AS 15.35.120 by requiring the
director of elections to place the name of a
magistrate seeking retention to pay a $30 filing fee.
Section 5. Amends AS 15.35.130 by requiring the
director of elections to place the name of a
magistrate who has properly filed a declaration of
candidacy on the ballot in the judicial district
designated in the declaration of candidacy.
1:46:14 PM
Section 6. Amends AS 15.35.135 by permitting a
magistrate to withdraw from candidacy for retention in
writing unless the notice of withdrawal is received
less than 64 days before the date of the election.
Section 7. Amends AS 15.58.050 by requiring that the
Commission on Judicial Conduct, rather than the
Judicial Council, file a statement with the lieutenant
governor that includes information about each supreme
court justice, court of appeals judge, superior court
judge, district court judge, and magistrate who will
be subject to a retention election.
1:47:01 PM
Section 8. Amends AS 15.58.060(a) by requiring
magistrate judges seeking retention to pay a $150 fee
to the lieutenant governor at the time of filing under
AS 15.58.
Sections 9 and 10. Amends AS 15.58.060(c) and AS
22.05.100 by replacing "Judicial Council" with
"Commission on Judicial Conduct."
Section 11. Amends AS 22.07.060 by authorizing the
Commission on Judicial Conduct, rather than the
Judicial Council, to conduct an evaluation and provide
information and a recommendation regarding a court of
appeals judge subject to retention election. Adds
magistrate to the positions a judge may not be
appointed to for four years following rejection of the
judge's candidacy.
1:48:12 PM
MR. OGAN continued:
Section 12. Amends AS 22.07.070(b) by allowing the
Judicial Council to submit the name of a judicial
candidate to the governor for consideration for the
court of appeals only if the council determines that
the candidate understands and is committed to strict
constitutional interpretation of statutes and
regulations and adhering to legislative intent. Amends
AS 22.07.070(a) by allowing the governor to appoint a
person who was not nominated by the council, but is
qualified under AS 22.07.040, requiring confirmation
by a majority of the members of the legislature
meeting in joint session, and making an appointment
effective upon the later of either legislative
confirmation or actual vacancy.
1:49:11 PM
Section 13. Amends AS 22.10.150 by authorizing the
Commission on Judicial Conduct, rather than the
Judicial Council, to conduct an evaluation and provide
information and a recommendation regarding a superior
court judge subject to retention election.
Section 14. Amends AS 22.15.170(a) by allowing the
governor to appoint a person to a district court or
magistrate vacancy who was not nominated by the
Judicial Council, but is qualified under AS 22.15.160,
requiring confirmation by a majority of the members of
the legislature meeting in joint session, and making
an appointment effective upon the later of either
legislature confirmation or actual vacancy.
1:50:09 PM
MR. OGAN continued:
Section 15. Amends AS 22.15.170(e) by allowing the
Judicial Council to submit the name of a judicial
candidate to the governor for a district court or
magistrate position only if the council determines the
judicial candidate understands and is committed to
strict constitutional interpretation of statutes and
regulations and adhering to legislative intent.
Section 16. Amends AS 22.15.195 by authorizing the
Commission on Judicial Conduct, rather than the
Judicial Council, to conduct an evaluation and provide
information and a recommendation regarding district
court and magistrate judges subject to retention
election.
1:50:55 PM
Section 17. Amends AS 22.15.205 to allow the
impeachment of magistrates.
Section 18. Amends AS 22.30.011(a) to allow an inquiry
into the potential misconduct of a magistrate.
Section 19. Amends AS 22.30.011(b) to allow the
Commission on Judicial Conduct to exonerate or
admonish a magistrate or recommend counseling and to
hold a disciplinary hearing to consider potential
misconduct of a magistrate.
Section 20. Amends AS 22.30.011(c) to entitle a
magistrate to counsel at a hearing before the
Commission on Judicial Conduct.
Section 21. Amends AS 22.30.011(d) to allow for the
exoneration or discipline of a magistrate after a
hearing described in AS 22.30.011(b).
1:52:02 PM
Section 22. Amends AS 22.30.011(g) to allow an
exonerated magistrate to request that the Commission
on Judicial Conduct's proceedings and report be made
public.
Section 23. Amends AS 22.30.070 to provide for the
disqualification, suspension, removal, retirement, and
censure of a magistrate.
1:52:32 PM
MR. OGAN continued:
Section 24. Amends AS 22.35 by adding a new section
prohibiting the use of state funds to support or
oppose the retention or rejection of a judicial
officer in an election under AS 15. This section does
not apply to the duties of the Commission on Judicial
Conduct under AS 15.58.050, AS 22.05.100, AS
22.07.060, AS 22.10.150, and AS 22.15.195.
Section 25. Repeals AS 22.15.170(c), AS 22.15.170(d),
and AS 22.30.011(h).
1:54:10 PM
SENATOR MYERS referred to Section 25. He asked why the bill
would repeal AS 22.30.011(h). He said this provision creates the
reports for judicial conduct, which should be retained.
SENATOR SHOWER deferred to his staff to respond to any technical
questions.
1:55:24 PM
MR. OGAN offered to confer with the Legislative Legal Services
attorney and report back to the committee.
1:56:45 PM
SENATOR HUGHES related that many of her constituents have raised
concerns. She said one could argue that this will politicize the
process, but she does not see it that way. The process has
already been somewhat politicized. She asked about moving the
duties from the Alaska Judicial Council to the Alaska Judicial
Conduct Commission (AJCC). She indicated that the AJCC is
comprised of three justices or judges, three attorneys, and
three members of the public. This means the AJCC consists of six
attorneys and three public members, she said. She asked for the
composition of the AJC.
SENATOR SHOWER said the AJC is composed of six members, with
three selected by the Alaska Bar Association and three non-
attorney members. In the case of a tie, the Supreme Court chief
justice would cast the tie-breaking vote.
SENATOR HUGHES pointed out that SB 14 would effectively change
the decision-making ability to six attorneys and three public
members. She asked whether the AJCC would have information on
every judicial appointee or judge coming before them. She stated
that the AJCC considers complaints against judges. She asked
whether the sponsor would be open to some type of combination of
duties, such as both the commission and council would have
duties.
SENATOR SHOWER answered that the bill addresses this. The AJC
would still provide information. AJCC consists of nine members,
but the bill does not restrict members to select the names of
potential judges. Under the bill, the AJC would make
recommendations based on the [nominee's or judge's] record
rather than the [Alaska Bar Association] making the decisions.
Finally, the legislature, consisting of elected officials, would
have the final say. He offered his view that the current process
is already politicized, but SB 14 would provide more balance,
providing public input.
2:02:43 PM
MR. OGAN said he could not recall AJC providing any critical
views on [prospective judges] and judges. He suggested that the
current system creates a bit of a conflict. Since the AJCC makes
determinations on complaints about judges, it makes more sense
for the AJC to evaluate and recommend judges. He said he is not
opposed to Senator Hughes's suggestion to create a hybrid. He
stated that this bill would not change the selection structure
for Supreme Court justices or superior court judges. This bill
relates to selection and retention for the court of appeals,
district court, and magistrates.
2:05:34 PM
SENATOR SHOWER advised members that he is open to amendments to
improve the bill.
2:06:30 PM
SENATOR KIEHL said he looks forward to hearing from the Alaska
Court System at a later date. Although the sponsor's staff could
not recall the AJC ever issuing any negative reviews on judges,
at least three instances occurred in recent years in the
communities of Bethel, Anchorage, and Kenai. He stated that SB
14 would treat some courts differently than others. He
questioned why the bill would set up a bifurcated system and not
include all judges.
SENATOR SHOWER argued that the current system is politicized and
gave an example. He then explained that to address all courts
would require changing the Alaska Constitution, which would be
difficult. He favored having the legislature exercise its
constitutional authority by appointing judges to the lower
courts. He said he will continue to work on a constitutional
amendment, but it may only have a slim chance of passing.
2:09:13 PM
MR. OGAN opined that the constitutional founders were clear in
establishing the Superior Court and ASC appointment process. The
founders gave future legislatures discretion since changes might
be necessary as the state grew. The bill would establish a
bifurcated system because of the prescriptive constitutional
sideboards. He offered his belief that clear constitutional
authority allows the legislature to establish the court
jurisdictions as it sees fit.
He characterized SB 14 as providing a better balance in the
selection and retention process. He said the appellate judges
handle criminal cases although [the sponsor] is considering an
amendment to include civil cases. When a person loses his/her
court case, the person can appeal it to the ASC, but that appeal
will be limited to issues in which the lower court erred in
interpreting a statute or constitutional provision. However, the
court cannot consider additional factual information that may
arise. Adding civil cases would allow a second opinion, which is
closer to how the federal court system operates. At the
Department of Natural Resources (DNR), where he previously
worked, he often appeared in federal district court and appeals
would go to two levels of appeals court, a 3-member panel or an
11-member circuit court, prior to an appeal to the US Supreme
Court. This bill moves more toward that federal process. The
bill would also ask the AJC to evaluate whether a judge could
consider strict interpretation of statutes, regulations, and the
Constitution of the State of Alaska. He reiterated that it would
provide for a more balanced approach.
2:14:04 PM
At ease
2:15:24 PM
CHAIR REINBOLD reconvened the meeting.
2:15:39 PM
SENATOR KIEHL disagreed with the sponsor that the process is
politicized.
He asked for further clarification of the terms, "a strict
constitutional interpretation and "adhering to legislative
intent." He related his understanding that those terms tend to
be judicial philosophies in conflict.
2:16:56 PM
CHAIR REINBOLD remarked that legislative bills are not supposed
to conflict with the constitution, so she did not see any issue
with the terms.
2:17:09 PM
SENATOR SHOWER continued to press his point that the process is
politicized and how it happened. Still, he acknowledged it is a
matter of interpretation. He asked his staff to speak to the
terms listed in the bill.
MR. OGAN said the language regarding strict interpretation is in
the bill because of some recent cases. The legislature does not
currently give any direction to the AJC.
SENATOR SHOWER offered to provide additional information on the
terms at a later date since time is limited today.
CHAIR REINBOLD held SB 14 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 14 - Sponsor Statement.pdf |
SJUD 2/3/2021 1:30:00 PM |
SB 14 |
| SB 14 ACJC Brochure (002).pdf |
SJUD 2/3/2021 1:30:00 PM |
SB 14 |
| SB 14 Sectional Analysis.pdf |
SJUD 2/3/2021 1:30:00 PM |
SB 14 |
| SB14.pdf |
SJUD 2/3/2021 1:30:00 PM |
SB 14 |