Legislature(2023 - 2024)BELTZ 105 (TSBldg)
02/23/2023 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB28 | |
| SB32 | |
| SB31 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 28 | TELECONFERENCED | |
| *+ | SB 31 | TELECONFERENCED | |
| *+ | SB 32 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 31-SELECTION AND REVIEW OF JUDGES
4:30:06 PM
CHAIR KAWASAKI reconvened the meeting and announced the
consideration of SENATE BILL NO. 31 "An Act relating to the
selection, retention, and rejection of judicial officers for the
court of appeals and the district court and of magistrates;
relating to the duties of the judicial council; and relating to
the duties of the Commission on Judicial Conduct."
He advised that testimony on SB 31 could be submitted to
[email protected]. He invited the sponsor to
introduce the bill.
4:31:18 PM
SENATOR MIKE SHOWER, District O, Alaska State Legislature,
Juneau, Alaska sponsor of SB 31, advised that a committee
substitute was forthcoming. He introduced the bill by reading
the sponsor statement.
[Original punctuation provided.]
Alaska's constitution is clear, there are two tiers of
judges.
1. Constitutional Judges: Superior Court Judges and
Supreme Court Justices must be vetted by the
Judicial Council (Council) and the Governor can
only select from a list of two or more names
submitted by the Council. SB 31 holds
constitutional judges harmless. The operating
authority of this provision is: Art IV Sec 5. "The
Governor shall fill any vacancy in an office of the
supreme court justice or superior court judge by
appointing one of two or more persons nominated by
the Judicial Council.
2. Statutory Judges: District, Appellate and
Magistrates. Existing statute currently follows the
Judicial Council nomination process. However,
judicial candidates are subject to the
legislature's discretion on how they are selected,
and appointed and whether they are confirmed by the
legislature. SB 31 exercises the legislature's
delegated constitutional authority to set policy on
how these statutory judges are selected to serve on
the bench. The operating authority of the provision
is: Art IV Sec 4. "Judges of other courts shall be
selected in a manner, for terms, and with
qualifications as prescribed by law."
Currently, magistrates serve at the pleasure of the
presiding superior court judge. Appellate and District
Court Judges are nominated in a statute defined
process that mirrors the Art IV Sec 5 Judicial Council
process.
The Council is structured to give a majority of the
Alaska Bar (Bar) members the control of who gets to be
a judge or justice. The deciding vote in a tie is
given to the ex-officio seventh member, the Chief
Justice. The Chief Justice has voted 79 times to break
ties since 1984.
Additionally, all judicial candidate names are subject
to a Bar member-controlled prescreening process. Bar
members of the Council are appointed internally by the
Bar with no legislative confirmation or administrative
oversight. Virtually all the Judiciary Branch is,
"beyond the reach of democratic controls." There is an
old saying, "power corrupts, and absolute power
corrupts absolutely." While the bill sponsor is not
expressly alleging corruption within the Judiciary, it
is undeniable that the Bar exercises tremendous power
over the judiciary.
In a legislative briefing to a joint session of the
legislature, Chief Justice Winfrey recently decried
the legislature meddling in the Judiciary, claiming
there are no politics in the Judiciary. If you
disagree, he further implied that you are just a sore
loser. He was adamant that the people's
representatives should not influence the selections of
judges.
4:34:58 PM
SENATOR CLAMAN called a point of order saying that the foregoing
was a poor characterization of the Chief Justices' comments, and
it was inappropriately disrespectful.
CHAIR SHOWER countered and then continued to read the sponsor
statement.
However, the constitutional framers that sought to
protect upper benches from political meddling, against
their own convention consultant's warnings, yet left
the lower benches up to legislative control. Up to
this point, the legislature ceded 100% control, and it
mirrors the "constitutional" Alaska Bar selection
controls.
The Alaska Constitutional Convention Judiciary
Committee Consultants wrote, as reported by Vic Fisher
in his book, "Alaska's Constitutional Convention." -
No state constitution has ever gone this far in
placing one of the three branches of the government
beyond the reach of democratic controls. We feel that
in its desire to preserve the integrity of the courts,
the convention has gone farther than is necessary or
safe (emphasis added) in putting them in the hands of
a private professional group, however, public-spirited
its members may be.
Senate Bill 31 strikes the "safe" constitutional
balance envisioned by the framers by giving the
governor and the people's representatives an
appropriate say in who sits on certain statutory
benches. It allows the governor to appoint and the
legislature to confirm who fills magistrate, district
court and appellate judges. It still allows the
Council to screen and recommend all candidates, but
the governor is not mandated to appoint only from the
Bar submitted list. The governor can nominate and
appoint Judicial Council screened magistrate,
district, and appellate judges. Even then, the final
"safety" cross check would be an up or down vote on
each appointment to the lower courts by the
legislature.
The sponsor respectfully suggests that lawyers may
have a conflict of interest when they rate judges for
retention. They all may appear before those judges and
are all sworn officers of the court. Imagine if only
legislators could nominate who could run for office!
Do they gain favor with judges they helped get on the
bench? Do they lose favor with those they rate poorly,
or vote against? The Constitution is clear, all power
is derived from the people, not the Bar or any other
private or trade organization. It is well past time
the "people's" branch, the legislature, take back its
constitutional derived authority in selection of lower
judicial appointments.
SB 31 exercises the authority expressly granted in the
constitution, for the legislature and governor to
prescribe how Magistrates, District Court judges and
Appellant Court judges are nominated and confirmed.
Thus, awakening the constitutional framers long
dormant approach to judicial selections.
4:37:30 PM
CHAIR KAWASAKI asked the sponsor to point out the differences
between this bill and the forthcoming CS.
CHAIR SHOWER said the bottom line is that magistrates will be
removed from the bill, except for the accountability section.
4:38:43 PM
SENATOR CLAMAN noted the reference to 79 times that the Chief
Justice voted to break a tie when the council was considering
whether or not to advance a name to the governor for nomination
to a judgeship. He asked how many times names were advanced and
the Chief Justice did not participate.
CHAIR SHOWER said he didn't know.
SENATOR CLAMAN asked if it was hundreds or thousands.
CHAIR SHOWER guessed that at best it would be a few hundred in
the history of the state.
4:40:07 PM
SENATOR CLAMAN asked if he was saying that the council voted to
advance a name to the governor just a few hundred times without
the Chief Justice having to cast a vote to break the tie.
CHAIR SHOWER said he thought that was correct. He acknowledged
that he didn't spend time researching that aspect of the
question.
SENATOR CLAMAN asked how often in those 79 times did the Chief
Justice vote in favor of advancing the name and how many time
did the Chief Justice vote to not advance the name.
CHAIR SHOWER replied he didn't ask for that data; he only wanted
to show that it does happen. He didn't want it to become a
political issue.
4:44:56 PM
SENATOR CLAMAN said his quick review of the material in the bill
packet indicated that a substantial majority of the time the
Chief Justice voted to advance the name to the governor for
consideration. He disputed the notion that it was a political
process, and expressed interest in the sponsor's office doing an
accounting so the committee knows how often the Chief Justice
voted against advancing a name.
CHAIR SHOWER said he'd try to get the data. He directed
attention to a document in the bill packets that describes how
Alaska judges currently are selected, with the exception of
magistrates. SB 31 suggests using the same attorney pool, the
Judicial Council still vets and screens the candidates, and the
governor would make the selection. If the governor rejects a
selection, it triggers a second round. In the second round the
governor would choose two names and the judicial council would
choose up to four more names, the governor would choose from
those names, and the legislature would vote to confirm the
judges. This would apply to district and appellate courts; this
would apply to 24 judges.
SENATOR CLAMAN asked if he agreed that all judges currently go
through the same process for appointment.
SENATOR SHOWER said yes.
SENATOR CLAMAN opined that if some judges were to go through a
processes that is not pursuant to the constitution, they would
be more likely to approach things with a different degree of
rigor or differently than judges who were appointed pursuant to
the constitutional process. This would invite more appellate
litigation and more disagreement amongst the district court and
the courts of appeals with the superior court and the Supreme
Court. He said it seems that the proposed process would not be
as good as the current process.
4:46:27 PM
CHAIR SHOWER maintained that he was suggesting what the
constitutional founders said to do. The judges will follow the
rules the Supreme Court sets. He didn't see an issue.
SENATOR CLAMAN asked if he could point to an example in which a
magistrate was found to owe a duty of loyalty to a superior
court judge.
SENATOR SHOWER said that's unprovable, but it's a reasonable
assumption.
4:48:45 PM
SENATOR CLAMAN asked if the Commission on Judicial Conduct looks
at the conduct of judges and magistrates and takes action only
if they are doing something inappropriate.
CHAIR SHOWER offered his understanding that the commission would
investigate a complaint that was filed.
CHAIR KAWASAKI advised that testimony could be submitted to
[email protected].
4:50:40 PM
CHAIR KAWASAKI opened public and invited testimony on SB 31.
4:50:48 PM
BETTY JO MOORE, representing self, Anchorage, Alaska, provided
invited testimony in support of SB 31. She stated that Alaska
needs judicial reform because not all judges follow the law,
which violates citizens' constitutional rights. She said the
selection of judges should never be controlled by a political
party or the Alaska Bar. Alaska needs judges who protect
Alaskans against injustices. She quoted a statement from a group
of justices who acknowledged that too often African Americans,
Alaska Natives, and other people of color are not treated with
dignity and respect and that as judicial officers they were
committed to do more to change this reality.
MS. MOORE stated that another group of people who aren't treated
with the respect they deserve are the people without the
education, financial means, or necessary political connections
to protect their constitutional rights to protect their children
from the states foster care system. She questioned whether the
people in jail for crimes they didn't commit actually received a
fair trial. She mentioned a survey mailed several weeks ago to
all Senators and Representatives asking about the Kenai Grand
Jury investigation and judicial corruption. Ms. Moore recounted
the letters she had written highlighting the wrongful and
inaccurate facts in an order that a superior court judge wrote,
the imbalance in the judicial system, and judicial violations of
constitutional rights. She charged that there was documented
proof of corruption among Alaskan judges and that they needed to
be impeached. She emphasized the need to stop judicial
corruption and that the remedy was for SB 31 to become law and a
constitutional convention to be called.
4:55:14 PM
SENATOR WIELECHOWSKI asked what percent of Alaskan judges she
believed were corrupt.
MS. MOORE answered that she wouldn't give a percentage until the
documentation is released, but one judicial injustice is one too
many.
SENATOR WIELECHOWSKI asked if she agreed that the process to
remove corrupt judges was through the retention vote.
MR. MOORE responded that the retention vote process doesn't
work.
4:57:42 PM
LOREN LEMAN, former lieutenant governor and former legislator,
Anchorage, Alaska, provided invited testimony in support of SB
31. He relayed a story from when he was a freshman legislator. A
member of the opposite party said Alaska might have a republican
governor someday but his party would always have the courts
because of the way judges are selected. Over the years that's
been his observation; over the last 35 years he's seen just one
strict constitutionalist on the Alaska Supreme Court. He opined
that every republican governor since statehood had complained
about the names the Judicial Council did not advance. He
provided examples. He described the current system as broken and
SB 31 as a creative solution.
5:02:16 PM
FRITZ PETTYJOHN, former legislator and member of the Alaska bar,
Anchorage, Alaska, provided invited testimony in support of SB
31. He mentioned a course he took during law school that
advocated for lawyers to advance social justice. He said he
didn't believe it then and he hadn't changed his mind. He
believes that somebody who wants to advance social justice
should run for the legislature, which he did. He opined that the
idea that part of the job of judges and justices is to advance
social justice is an anathema; their job is to interpret the law
as written. Their job is not to create the law. He said there's
a fight in this country over US Supreme Court justices; there
are conservatives who believe in judicial restraint and liberals
who believe in judicial activism. He maintained that the reason
Alaska doesn't have that conflict is because the Alaska Bar
Association is overwhelmingly weighted with individuals who
believe that judges and the court system should advance social
justice. He called that backward and opined that SB 31 was a
small step in the right direction.
SENATOR SHOWER thanked the committee for staying late to hear
the testimony.
5:06:06 PM
CHAIR KAWASAKI held SB 31 in committee with public testimony
open.