Legislature(2001 - 2002)
04/15/2002 02:36 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SB 159-APPEALS COURT JUDGES RETENTION
VICE-CHAIR DONLEY said he intends to take public testimony on SB
159 today but not to move it from committee today.
MR. LARRY COHN, Executive Director of the Alaska Judicial
Council, gave the following testimony.
Mr. Chairman, I don't think that the shorter retention
term that this bill proposes for Court of Appeals
judges provides enhanced accountability without some
risk of compromising the judicial independence of the
Court of Appeals. I believe that our current evaluation
process in Alaska is very effective as a means of
ensuring judicial accountability and I would say, Mr.
Chairman, that [indisc.] of the contents of the
evaluation that the Judicial Council does for retention
purposes, a more compelling argument might be made that
shorter retention terms are necessary to ensure
judicial accountability. As you know, the Judicial
Council undergoes a very comprehensive evaluation for
retention purposes. We survey approximately 10,000
Alaskans, including attorneys, jurors, police and
probation officers, social workers, court employees and
independent court watchers. We also solicit all forms
of public comment, we look at judicial appellate rates,
peremptory challenges, conflicts of interest and other
aspects of performance and then we publish that
information for the public's benefit.
And as I mentioned in my previous testimony, Mr.
Chairman, in 1999 the American Adjudicators Society
published a study that reviewed 20 years of our efforts
in evaluating judges and, in short, the study uncovered
evidence that Alaskan voters actually make use of the
information that we conveyed to them about the judges.
The judges both - in the retention election there was a
strong correlation between that percentage and the
judges' scores, according to our survey. The same study
unveiled that voters when interviewed said that they
make use of the information that the Council provides
so we believe that our evaluation process is a major
step toward holding judges accountable for their
conduct and their performance. Our data also suggests
that the system is working as intended. We ask the
attorneys to rate our appellate judges as you know, and
a study that we've done for [indisc.] show that from
1994 to 2000 the average rating for all appellate
judges in every possible rating category that we ask
about is excellent. Our appellate judges routinely
receive higher ratings than our trial court judges. We
also conduct a survey of court employees that measure
somewhat different characteristics than do our surveys
of attorneys and they reflect also excellent ratings
for our appellate court judges. And ultimately, the
referendum on judicial accountability in the last 22
years for court [indisc.] judges that [indisc.] and
retained by voters.
I'd like to also briefly make an observation I made
last time I testified, Mr. Chairman, that there
sometimes is a publicly perceived need or you hear
opinion expressed that we need to reign in our courts
that are light on crime. The data that we compile
reflects that the Court of Appeals is anything but
light on crime. The appellate affirmance rate, for the
Court of Appeals, which of course has just criminal
jurisdiction, is in excess of 85 percent and, if
anything, we understate that appellate affirmance rate
because we include remands as part - as a reversal
when, in fact, many of those cases are remanded
ultimately as a result of re-conviction. And this
average appellate affirmance rate of criminal cases
compares favorably to the national average, which is in
the vicinity of 79 percent. So, we think these
statistics show that our court has not been easy on
criminals and, more importantly or just as importantly,
it's been very effective in unambiguously interpreting
and communicating legal standards so that the Trial
Courts can correctly and effectively implement the law.
20 years ago this was not the case. The criminal law in
Alaska was largely unsettled. Today, principally
because of the Court of Appeals, the criminal law is
well established, it's reflected in our high affirmance
rate and our appellate affirmance rates, which exceed
national standards, and a trend of improved appellate
affirmance rates for trial judges having criminal
cases.
Mr. Chairman, the last time we convened on this bill,
you made the observation that, you know, many people
feel that judges should not serve a term in excess of
our President or legislators and I must confess that
observation has a certain ringing appeal to it but I
respectfully suggest that there's a reason for that and
that is of course that in the representative branch of
government, you and your colleagues have an obligation
to effect the will of your constituents whereas our
appellate judges are not - we don't want our appellate
judges to be swayed by a public opinion or the will of
their constituents. They're for the protection of
certain principles, and I don't mean to infer, of
course, that the legislative branch is unprincipled,
but the judges of course have to preserve our
principles in the area of criminal law and criminal
procedure and there's a great need for stability in the
area of the law.
Now if you have shorter retention terms, what you have
is less certainty as to what the law is. It will
increase litigation, you know, if a lawyer doesn't like
the law or the state doesn't like - the defense lawyers
[indisc.], the state doesn't like the law, they may
feel that with different judges that they may get a
different law so I suggest that you might see an
increase in litigation if the term is reduced.
The jurisdiction of the Court of Appeals, being
criminal law, is an area that is particularly
susceptible to public sentiment and I think that a
shorter retention term poses a risk that sentiment
could interfere with judicial reasoning. As I observed
last time, Mr. Chairman, there are practical
considerations in that a shorter retention term is
likely, if anything, to result in fewer applicants for
this position. As I mentioned before, there are a lot
of lawyers obviously that have criminal law experience,
but there are few lawyers that are really suitably
qualified to serve on the Court of Appeals. It's a
court that requires more than just criminal law
experience but significant appellate experience or at
least significant experience in research and writing in
the area of criminal law. This is reflected in the fact
that in the year since 1980 when the original judges
were appointed, there have only been two vacancies for
which there were a combined total of eight applicants.
As I mentioned before, five of those applicants were
judges, one was a former judge, and the remaining two
were the heads of their respective appellate divisions
in the public defender agency and for ASPA (ph). And so
there are very few people that are really qualified to
serve on the court and I'm afraid that shorter
retention periods might discourage those few applicants
who are qualified from applying.
As our fiscal note indicates, there [are] some
additional financial costs associated with more
frequent retention elections, albeit very small. And
just one other thing, Mr. Chairman. There was another
observation, I believe, that you made at the last
hearing that it is quite apropos in many situations
where you said, I believe, that it's not uncommon to
hear agency heads testify against legislation that
might propose some change in the status quo and I think
that's an observation, of course, that's a good one. In
our case I suggest to you it doesn't really apply
because if anything the Judicial Council would have a
vested interest in more frequent retention periods as
it would make the Alaskan public more dependent on the
work we do, if anything.
So, in sum, Mr. Chairman, I think the Court of Appeals
judges are doing a good job. We need for that to
continue. We need very qualified applicants. We need to
maintain judicial independence in that area of the law
that is so subject to public sentiment and we need
stability. So, with all due respect, Mr. Chairman, I
suggest that the proposed legislation is unnecessary
and it might pose more risk than possible benefits. So
thank you very much Mr. Chairman.
VICE-CHAIR DONLEY asked Mr. Christensen to testify.
MR. CHRIS CHRISTENSEN, Deputy Administrative Director of the
Alaska Court System, said reducing the term of retention for
Court of Appeals judges from eight to six years would have a very
negative effect on the criminal justice system in Alaska. The
Alaska Court System opposes the legislation. As noted by the
previous speaker, unlike many states and the federal government,
Alaska has a rigorous merit based system for the selection of
judges. The framers of the Constitution spent a great deal of
time putting together Alaska's system of selecting and retaining
judges. They wanted a system that provided for both independence
and accountability and was as non-partisan as possible. In the
federal system, judges had complete independence and very little
accountability. They were political cronies of the President or
supporters and they served for life. The framers looked at the
system used by most states at that time and saw judges who were
totally accountable but had very little independence because they
ran in contested elections and knew that their decisions would be
reduced to sound bytes and result in attack ads from well
financed opponents. Alaska's framers fashioned a compromise
modeled on the Missouri system. Judges are selected using a merit
based system. Partisan politics are kept out of the process as
much as is humanly possible and judges stand for retention on a
regularly scheduled basis.
MR. CHRISTENSEN stated, "Mr. Chairman, in my view this has worked
pretty darn well over the years." Alaska has no history of
official corruption in its judiciary, like many states. Attorneys
who have practiced in Alaska for many years will tell you that
the quality of the bench today is substantially better than it's
ever been. Alaska has attracted a lot of smart, hard working,
well respected attorneys who are very committed to what they do
and took a pay cut to serve on the court. Alaska's judges dispose
of about 150,000 cases per year and in a typical year there may
only be few decisions that he takes heat on every year. He
reminded legislators that if the court issues 15 decisions each
year that the legislature does not like, that amounts to 1/100 of
1 percent of the court's caseload. He stated it is unfortunate
that this level of dissatisfaction has prompted proposals to
change the very nature of the system.
MR. CHRISTENSEN informed members that Alaska has the most liberal
Bill of Rights of any state, meaning the most protective of
individual liberties. The framers of Alaska's Constitution called
themselves Republicans and Democrats but most of them, in a very
real sense, were Libertarians who wanted to keep government in
its place. Alaska's Court of Appeals applies the most liberal
bill of rights in the nation to the laws passed by the
legislature, and it upholds convictions under those laws about 85
percent of the time, which is about the national average.
MR. CHRISTENSEN said when seeking independence, the framers of
the Constitution believed it is the ability of a judge to
interpret and apply the law to a case as freely as possible from
external influences and pressures. That is what the Court of
Appeals does now. SB 159 will reduce this ability to judge a case
free of external pressure. Shorter intervals will make more
likely that political campaigns will be waged against judges
because of a single unpopular decision. Longer intervals give
passions time to cool and allow people to take a longer term
perspective on a judge's job performance. If a judge publicly
announced he was going to do a public opinion poll in a criminal
case and base his decision on the results, the public would be
outraged.
MR. CHRISTENSEN said, as far as how Alaska compares to other
states, Alaska's retention term is eight years. 39 other states
have courts of appeals. 18 of those have merit based systems and
21 have elections, either partisan or non-partisan contested
elections. The average term for the merit based states is 7.9
years, almost identical to Alaska's 8 years. The average term for
the non-merit based states is 7.8 years. The framers of the
Constitution specifically discussed the length of term of the
Supreme Court and decided that it should be average. Some members
of the judiciary committee at the constitutional convention
wanted lifetime appointments, some wanted 12-year terms. They
decided on 10 years because that was the national average.
MR. CHRISTENSEN said that litigants should have confidence that
their cases should be heard on merits, not on public or political
pressure that can be brought to bear on a judge. The law commands
allegiance only when the law commands respect, which requires
that the public believe that judges are neutral. Judicial
independence is not about the protection of judges, it is about
the protection of the public.
MR. CHRISTENSEN noted that last year there were over 100,000
cases that fell within the jurisdiction of the Court of Appeals,
felonies, misdemeanors, infractions, municipal ordinance
violations. Anyone can end up in court because of a brief lapse
in judgment or because of carelessness. Criminal convictions can
have serious consequences: loss of one's reputation, job,
savings, relationships, and freedom. He asked legislators to
consider the following question: if one day a criminal court
judge was making an important decision about one of their lives,
would they want the judge to base his decision on his best
interpretation of the law or would they want the judge to look
over his shoulder, sniff the political wind, and take into
account the personal consequences that would face him if he ruled
a certain way?
VICE-CHAIR DONLEY thanked Mr. Christensen and noted no one else
wished to testify on SB 159. He announced he would hold the bill
in committee and adjourned the meeting at 3:15 p.m.
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