Legislature(2001 - 2002)
05/05/2001 01:10 PM Senate STA
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* first hearing in first committee of referral
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SB 159-APPEALS COURT JUDGES RETENTION
SENATOR DONLEY described the bill as a Senate Judiciary Committee
bill that would shorten the terms of office of the court of appeals
from eight to four years. Pursuant to research that was performed
after the bill was drafted, he suggested a committee substitute to
change the four-year term to six years.
There are various systems for selection and retaining judges across
the United States. The committee's research shows there are only
eight pure merit states of which Alaska is one. Of those states,
the average length of office is about 7.2 years for appellate
courts so Alaska is above the average for the merit states.
Many other states, even those using a mix of the merit system, have
terms that are less than Alaska's. In fact, the only states with
longer terms than Alaska's are those that use the merit system and
have the Senate confirm the appointments. Given that eight years is
above the national average and that most other states elect the
judges directly, it appears that Alaska has less judicial oversight
and longer terms than most states that use the merit system.
He feels it would be better public policy to have a six year term
rather than the four years the bill calls for. This is more in line
with the national average, particularly since there is no direct
election of judges, just the retention election option.
Number 2109
CHRIS CHRISTENSEN, Deputy Administrative Director of the Alaska
Court System, testified SB 159 would negatively impact the criminal
justice system in Alaska and thus they oppose the legislation.
Judges are selected on a rigorous merit based system in Alaska. The
minutes of the Constitutional Convention reflect the long and
careful time spent to put together a system for selecting and
retaining judges. They wanted a system that provided for both
independence and accountability and selected the Missouri plan as
their guide. Judges are selected using the merit system and
partisan politics are kept out of the selection and appointment
process as much as possible. They then stand for retention on a
regularly scheduled basis.
This has worked well and there is no history of official corruption
in the Alaskan judiciary, unlike many states. If Alaskan attorneys
are polled, they will say the quality of the bench today is better
than it has ever been. There are many hard working and well
respected attorneys who are committed to what they do.
He said he is perplexed to see legislation that affects the court
of appeals because it does not deal with controversial cases. It
hears criminal appeals in a generally non-controversial manner and
it applies the most liberal bill of rights in the country to the
laws the legislature passes.
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 appeal does now
and SB 159 would effectively reduce the ability to judge a case
free of external pressure simply because judges would have to face
the voters at much shorter intervals. Shorter intervals make it
more likely that political campaigns would be waged against judges
because of single unpopular decisions. Longer terms would give
voters a longer term perspective on a judge's job performance.
Although it is stated that this legislation is to bring the
retention periods for Alaska's judges more in line with other
states he respectfully disagrees with the conclusions drawn by
Senator Donley because his data is out of date. Currently there are
39 states with an intermediate court of appeals and 18 of those use
some variation of the merit selection and retention system. Of
those 18, 10 have terms of 8 or more years, 8 have terms of less
than 8 years. Therefore, Alaska's 8 year term is right in the
middle. There are 21 states without a merit system for their court
of appeals and 10 of those have terms of 8 years or longer and 11
have terms of less than 8 years. Again, Alaska is in the middle. If
you add the totals for the 39 states you will see that 20 have
terms of 8 years or longer and 19 have terms of less than 8 years.
Alaska's terms are not longer than others they are right in the
middle.
Next, he used averages as Senator Donley did in his memo. This
proved problematic since there are 2 states that appoint judges
until age 70. If you were to look at the current court of appeals
and apply the age 70 standard, one would have a term of greater
than 20 years and two would have terms of more than 25 years. He
called those two "age 70" states 15 year terms because most of
Alaska's judges serve 15 years. Of the merit selection states the
average is 7.9 years and of the non-merit states the average is 7.8
years. This shows that Alaska is at the average.
It is argued that judges of the court of appeals in Alaska have
less accountability than in most other states but they don't have
less accountability than the four states with courts of appeal that
use appointments without any retention process. In fact, he doesn't
believe they have less accountability than judges in most of the 16
other states that use the merit selection system. They probably do
have less accountability than in the 17 states that conduct
elections but, according to the framers of the constitution, that
is good. Many of the framers came from states with contested
judicial elections and were well aware of the pitfalls in that type
of accountability.
Judges who are challenged in retention elections do have the
ability to raise money and oppose the election but it's not a good
idea to have a system where criminal court judges must raise money
to defend themselves from challenges on a regular basis. Each
litigant should have the confidence of knowing that their case will
be heard on its merits and not on the basis of public or political
pressure. The law commands allegiance only because it commands
respect and it can only do that if the public believes their judges
are neutral.
Reducing the term between retention elections would also discourage
qualified applicants from seeking judicial positions.
In response to Senator Donley's recommendation that the term in the
proposal be raised from four to six years he noted that every
person appointed to the court of appeals faces the voters at the
first general election, three years after appointment. The eight
year retention term only starts after they have faced the voters
that first time. This gives voters the chance to look at a judge
right away and evaluate the job.
Currently supreme court judges have a 10 year retention term,
superior court judges have six years, and the district court four
years. Eight years for the court of appeals fits right in and that
is why the legislature chose eight years in 1980 when it created
the court of appeals. Six years would give it the same term as the
superior court, which is a court with less responsibility and has
to make fewer controversial decisions. To compromise and change the
term to six years would have a very negative affect on the court of
appeals.
SENATOR PHILLIPS asked when the court of appeals was established.
MR. CHRISTENSEN said he thought it was 1980.
CHAIRMAN THERRIAULT noted that Bill Cotton was online to testify
and that a three page sheet from the Alaska Judicial Council was in
committee packets.
BILL COTTON, Executive Director of the Alaska Judicial Council,
testified that the council is a small agency in the judicial branch
of government and separate from the court system. They are charged
with investigating and screening judicial applicants and with
evaluating the performance of judges and making the evaluation
information and retention recommendations available to the public.
The council opposes SB 159 for a number of reasons; first he wanted
to refute the statement made by Senator Donley that Alaska has less
oversight and public scrutiny of judges than most other states.
This is simply not the case even in the states that have shorter
terms. There is not another state that surveys every attorney in
the state, mails a summary of the survey to every voter and puts
the detail of the survey on the Internet.
The implication that Alaska Court of Appeals terms are longer than
other states is not the case. Most states that have intermediate
appellate courts have terms that are eight years or longer.
The council believes this would have a marginal discouraging effect
on qualified applicants, particularly those attorneys with stable
practices in the private sector.
By increasing the number of judges that are on the ballot for
review the focus is taken off the individual judges and placed on
the group. Last year there were 30 judges up for review which made
it difficult to thoroughly evaluate each one and difficult for the
voters to clearly understand each judge's record. Although the
intent of the bill is to increase review, it may have the opposite
effect.
Costs will be increased marginally if SB 159 passes. The Judicial
Council filed a small fiscal note and there will probably be a
small cost from the Division of Elections.
Most importantly, this upsets the balance setup by the framers of
the constitution between judicial accountability and judicial
independence. Judicial accountability is a critical element of the
council's job but judicial independence is critical as well. It is
one of the basic principles upon which our country was founded;
judges are supposed to protect the rights of citizens regardless of
who is displeased. "We want judges who are fair, fast, polite,
smart but we want and need judges who decide cases on the law not
who the parties are and not who is going to make campaign
contributions and not what is temporarily popular." The different
governmental branches have different purposes. The governor and
legislature is elected to carry out a political agenda while judges
are selected to decide cases on the law and the constitution. The
delegates to the constitutional convention discussed the issue of
selecting, evaluating and retaining judges at length and they voted
overwhelmingly to not reduce the term of the only appellate court
discussed which was the supreme court from ten to six years.
On the whole, the system is excellent and it is respected across
the country and world. The council urges the balance not be upset
with the proposal.
CHAIRMAN THERRIAULT asked Senator Donley whether he had a question
about Mr. Cotton's statistics.
SENATOR DONLEY replied he would like to respond generally to the
testimonies. First he would like copies of Mr. Christensen's
research so he could compare the differences with his research. He
disagreed with the last research they received from the Judicial
Council. States that were listed as merit states had elected
judges. There are few states that have a pure merit system like
Alaska does. His research indicates that just seven states don't
have either legislative confirmation or "some other lower level of
judges being elected." It's important that there is greater
accountability for the lower level judges because that affects what
cases the higher level judges will see. Therefore, "to ignore the
fact that you're electing the lower judges when you talk about the
accountability of the upper judges, I think, is not logical and not
fair."
He didn't agree with the argument that reducing length of the term
would slow the election process because people wouldn't have time
to review all the judge's records. He pointed out there are only
three judges on the court of appeals.
He didn't agree that changing the length of the term for the court
of appeals would upset the balance of the constitution because it
was created by the legislature years after the constitution was
written.
SENATOR DONLEY thought a vast number of Alaskans would agree with
him that eight years is too long between elections for this type of
officials. In fact, the polling numbers the legislative majority
gathered shows the public agrees.
HB 159 does not abandon the merit system, "what's before this
committee is going from eight to four or eight to six [years] or
whatever option there is and I'm suggesting from eight to four, I'm
not suggesting-or eight to six- I'm not suggesting the abandoning
of the merit system here. But I do suggest that we are an
extraordinarily generous and long terms of office compared to the
lack, through the pure merit system states that are out there and
not considering that all these many many the vast majority of
states have some degree of elected judicial officials in their
process."
SENATOR DONLEY disagreed with Mr. Christensen's suggestion that the
court of appeals has been uncontroversial. He thought looking at
the efforts of the current legislature with respect to evidence of
rule 404(b) shows that this court of appeals frequently ignores the
intent of the legislature and poses their own political view on the
evidence rules. "I say that because, for many years, as judiciary
chair, we attempted to simply bring Alaska into conformance with
the meaning of evidence rule 404(b)." The effort was to have the
language in Alaska be interpreted the same way the federal courts
interpreted the language but the court of appeals has blocked that
for many years.
CHAIRMAN THERRIAULT agreed with the assessments. He asked Senator
Donley to look at Mr. Christensen's data and point out any flaws.
Although he hasn't felt as much criticism of the court of appeals
as Senator Donley, he is probably just unaware of where the problem
lay in the situation just described.
SENATOR DONLEY gave as another example, the interpretation of the
statute that requires the mandatory 99 year sentence for
individuals who have committed multiple murders, torture murders,
and of murder of a police officer or fireman in the line of duty.
The court produced an opinion saying the person had to be notified
at the time of sentencing that they might be subject to that
sentence. That is very unusual in American jurisprudence because
sentencing issues are usually separate than the charging issues.
The Department of Law disagreed with this decision and is another
example of their being controversial.
CHAIRMAN THERRIAULT commented that one of the issues that weighs on
him personally is "trying to get good private sector attorneys
interested in the judiciary. I think we've had a problem with that
and part of it just might be that we've just had democratic
governors and they appoint from the end of the spectrum that I
would perhaps gravitate to the other end. Tony Knowles is termed
out here so we might have a bite at the apple here."
With the three year review and then eight year review they are
coming up for election twice in an 11 period of time. Three years
is probably too short for people see what the judge is about but
the original bill was just four years even though the
recommendation is to change that to six years.
SENATOR DONLEY said he knows the legislation won't be moved that
day and he suggested adopting a CS version that was at least six
years so the debate over the increment could be over six years
rather than four years.
CHAIRMAN THERRIAULT said he agreed with that. He moved an amendment
to SB 159 to have a draft drawn up that will change "four years" to
"six years" and that will be the document that is in committee for
discussion purposes. He asked for objection.
SENATOR DAVIS said she had no objection but she would move the
amendment for him since he is the chair.
CHAIRMAN THERRIAULT thanked Senator Davis. There were no objections
to the amendment. The bill was held in committee.
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