Legislature(2013 - 2014)BELTZ 105 (TSBldg)
02/24/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB108 | |
| SB171 | |
| SJR21 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 108 | TELECONFERENCED | |
| *+ | SB 171 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SJR 21 | ||
SJR 21-CONST. AM: MEMBERSHIP OF JUDICIAL COUNCIL
2:00:29 PM
CHAIR COGHILL announced the consideration of SJR 21. "A
resolution proposing amendments to the Constitution of the State
of Alaska to increase the number of members on the judicial
council and relating to the initial terms of new members
appointed to the judicial council." This was the third hearing.
[CSSJR 21, Version N, was before the committee.]
2:01:17 PM
SUZANNE DIPIETRO, Executive Director, Alaska Judicial Council,
explained that the Judicial Council is involved in three areas
of government in Article 4 of the Alaska Constitution. The first
is to screen applicants for judgeships based on qualifications
and forward at least two names to the governor for appointment.
Then the Judicial Council evaluates the performance of sitting
judges and provides that information to voters for use in
retention elections. These functions work together as part of
the merit selection system. The third responsibility is to
conduct studies to improve the administration of justice.
Examples of these studies include the effectiveness of
therapeutic courts, the child protection case processing system,
the number and effectiveness of domestic violence protective
orders, criminal sentencing, recidivism, and outcomes in felony
case processing.
MS. DIPIETRO directed attention to the packet she provided that
includes information about the current members of the Alaska
Judicial Council all of whom serve staggered six-year terms. The
current members are Ken Kreitzer from Juneau, Kathleen Tompkins-
Miller from Fairbanks, Aimee Oravec from Fairbanks, Julie
Willoughby from Juneau, James Torgerson from Anchorage, and Dave
Parker from Wasilla.
She discussed the merit selection and retention process. The
idea, which is enshrined in the constitution, is that a group of
six citizens, chaired by the chief justice, screen applicants
and then send the names to the governor who makes the
appointments. Then the people are involved through a straight up
or down popular vote on the retention of those judges that were
selected. The founders thought that the balance between
selection and retention was very important. The genius is that
it provides a role for the executive, the legislative, the legal
profession, and the public directly. She stressed that this was
the gold standard in the nation for selecting judges.
2:05:17 PM
MS. DIPIETRO discussed the way that the merit selection system
is implemented. When the Judicial Council is notified of a
judicial vacancy, it sends out a press release and notice to all
members of the Alaska Bar Association inviting them to apply.
Applicants are given about a month to complete the lengthy
application. It must include three professional and two
character references, contact information for every legal and
non-legal employer, legal and non-legal education, community
service, Bar Association service, trials in the last five years
with contact information for the judges and attorneys they
worked with and against in those trials, and the type of
practice. The Judicial Council also looks for grievances filed
with the Bar Association, civil and criminal charges or
lawsuits, credit reports, and moving violations. If the
candidate is already a judge the Council looks at whether any
discipline has been filed with the Judicial Conduct Commission.
The investigation is exhaustive and comments are solicited from
the public throughout the process. Having such a robust public
component is unique in the country, she said.
MS. DIPIETRO explained that the Judicial Council then surveys
Bar Association members, based on their direct professional
experience, about the applicants. The questions center on
specific areas known to correlate to being a good judge. Those
are legal ability, temperament, integrity, fairness, and
suitability of experience. The results of these surveys are
public, which is also unique. She pointed out the Rule 8.2 of
the Alaska Rules of Professional Conduct explicitly states that
a lawyer shall not make a statement about the qualifications or
integrity of a judicial candidate that the lawyer knows is false
or is reckless. The need to be honest is stressed throughout the
process and a violation of this rule could result in discipline,
she said.
The survey results are published and the Judicial Council then
sets a meeting date for each applicant in the place where the
vacancy is located. The reason for this is to hear from the
people in that location about what they think about the
candidate and/or the qualities they thing the Judicial Council
members should take into account when selecting a judge for
their community. She highlighted that this was an important part
of the process and one that is not necessarily replicated in
other nominating commissions.
MS. DIPIETRO said the Council members generally receive more
than 100 pages of information about each applicant before the
meeting. Reports from members indicate that preparation time
often takes longer than the interview itself. The interview
process takes about 45 minutes and can be open to the public if
the candidate requests that. After the interview, the Council
undertakes a very deliberate and thorough process in which each
member is called upon to speak to their impressions and views of
each candidate.
2:12:11 PM
SENATOR WIELECHOWSKI asked if Alaska judges must be attorneys.
MS. DIPIETRO replied a magistrate judge is not required to be an
attorney.
SENATOR WIELECHOWSKI asked if most superior court judges and
superior court justices are attorneys.
MS. DIPIETRO replied all state supreme court, superior court,
and district court judges must be attorneys.
SENATOR WIELECHOWSKI asked if there was a correlation between
higher Bar Association scores and those who are ultimately
nominated.
MS. DIPIETRO affirmed that applicant with a score of 3.5 or
higher is statistically more likely to be nominated.
SENATOR WIELECHOWSKI asked if there was an analysis to determine
whether or not those who have higher survey ratings ultimately
have higher performance evaluation ratings when they stand for
retention.
MS. DIPIETRO affirmed that that higher bar survey scores during
the selection process correlate to higher scores in the judicial
evaluation process.
SENATOR WIELECHOWSKI asked if there is a correlation between
writing samples and higher retention scores.
MS. DIPIETRO affirmed that having a writing sample that is
scored as excellent is more closely correlated with higher
retention scores than those who had lower writing scores.
CHAIR COGHILL asked what those scores are based on.
MS. DIPIETRO relayed that they're based on grammar, syntax,
clarity of ideas, conciseness, and quality of legal analysis.
CHAIR COGHILL asked if it would be akin to English teachers
grading English papers.
MS. DIPIETRO answered yes.
CHAIR COGHILL asked if it's an elitist process in the sense that
only certain people will have their writing samples scored.
MS. DIPIETRO explained that the staff member who administers the
writing sample does the assessment, but the Council members also
have copies of the writing samples so they're able to agree or
disagree with the assessment.
2:16:41 PM
MS. DIPIETRO directed attention to handout materials showing
data on selection votes: about 81 percent of the time the votes
are either unanimous or nearly unanimous; splits between
attorney and non-attorney members occurred only 15 times in
1,136 votes, less than two percent of the time; the chief
justice votes just six percent of the time; when the chief
justice does vote he/she has voted yes to forward the name in
question to the governor 75 percent of the time; in about 73
percent of all judicial selections, the Council has forwarded
more than two names to the governor; and many of the instances
in which the Council forwards fewer names occurs in vacancies in
small rural areas that have just two applicants.
MS. DIPIETRO said that while it's accurate that there have been
five chief justice votes in the last two years, that data out of
context doesn't take into consideration that there have been a
lot more votes in the past few years. She directed attention to
a chart showing that the percentage of chief justice votes
compared to total votes hasn't varied very much. In fact, the
chief justice voting rate in the past two years has been around
four percent, which is less than the historical average of six
percent, she said.
MS. DIPIETRO said she wasn't taking a position on SJR 21 because
the Judicial Council hadn't met to talk about that, but she
thought it was important to remember the concerns that were
voiced during the Constitutional Convention when the founders
decided on the merit selection system. She cited the following
excerpts from the minutes of the Constitutional Convention:
The theory is you have a select group. The lawyers
know who are good and they know who are bad. The
laymen represent in substance the public.
The whole theory plan is that in substance a select
professional group, licensed by the state can best
determine the qualifications of their brothers. The
intent of the Missouri plan was in substance to give a
predominance of the vote to professional men who knew
the foibles, the defects, and the qualifications of
their brothers. It is unquestionably true that in
every trade and in every profession, the men who know
their brother careerists the best are the men engaged
in the same type of occupation.
MS. DIPIETRO said the theory was to have an equal balance of
public and lay members. Names are submitted to the governor so
there is executive branch participation, and then the public
participates directly in the retention vote.
2:21:07 PM
MS. DIPIETRO concluded her comments giving information about how
other states address this issue. About 38 other states use
judicial nominating commissions and 18 of those states have an
equal number of attorney and non-attorney members. A few states
have more non-attorney members as SJR 21 proposes, but those
states typically have a restriction on the total number of
members that can be a member of a particular political party.
For example, Arizona has 10 non-attorney members on its judicial
nominating commission, but only five of them can be of the same
political party. There are five attorney members and only three
can be of the same political party. The states that have
imbalance try to impose balance through other mechanisms, she
said.
CHAIR COGHILL stated agreement with the focus of SJR 21 which is
to try to find a better regional balance with public members.
SENATOR DYSON asked if anybody had correlated the two different
schemes to the crime rates and recidivism rates or cases
overturned on appeal.
MS. DIPIETRO said she didn't know.
2:23:19 PM
CHAIR COGHILL opened public testimony.
2:23:49 PM
FRITZ PETTYJOHN, representing himself, said he's been a member
of the Alaska Bar Association for 30 years, and he's never
understood why the Bar Association is given such control over a
branch of government. He disputed that Bar surveys are a good
way to measure merit and cited examples to illustrate that
personal opinions and politics get involved. He offered his
opinion that the judicial system has a bias in favor of its own
power and it sets up a conflict with other branches of
government. He relayed that he's been a resident of the state of
California for 13 years and because he's still a member of the
Alaska Bar Association he is able to vote on judicial
applicants, but non-attorney residents of Alaska can't vote on
them. He concluded his comments stating that while lawyers have
a role to play, the decisions should be made by members of the
public.
SENATOR OLSON asked why he didn't bring the issue forward in the
70s and 80s when he was a member of the legislature.
MR. PETTYJOHN replied he would have done it if he thought he
could have gotten a two-thirds vote.
2:27:45 PM
ALEXANDER O. BRYNER, representing himself, Anchorage, Alaska,
said he had an extensive history as an attorney and judge in
Alaska and he believes that Alaska has a flagship system of
judicial selection. It can be improved, but it's based on
constitutional principles that the founders adopted carefully
and with full knowledge of what they were doing, he said. The
intent was to move away from the territorial system of judicial
selection that resulted in judges who were beholden to vested
interests that didn't reflect the interests in Alaska. He
stressed that the system has worked well over time and that
nothing is broken that needs a constitutional fix.
JUSTICE BRYNER said he agrees that there is a need to increase
public participation in the process, but that it can be
structured within the existing system. He concluded that
enlarging the body of public members would be difficult
logistically.
2:38:18 PM
ELAINE ANDREWS, representing herself, Anchorage, Alaska, said
she is a retired superior court judge testifying in opposition
to SJR 21. She relayed that in the past she has worked for the
Judicial Council that screens judges, served as a judge, and sat
in judgment on other judges as a member of the Judicial Conduct
Commission. From this unique perspective she can say that Alaska
has the finest judiciary in the country and that the merit
selection process works because it is not driven by partisan
politics. She stressed that the system does not need to be
changed, but conceded that the manner in which it is implemented
may need more attention from those who justifiably speak for
more diverse public input.
JUDGE ANDREWS pointed out that the founding fathers thought that
the public members could be valuable in the merit evaluation,
but should not be given the deciding vote in a tie situation.
The tie-breaking vote was given to the chief justice who
historically has cast his/her vote a comparatively small number
of times. In the rare instances that the chief justice breaks a
tie, she said it's important to remember that that chief justice
was selected by the governor who was elected by the people.
She further pointed out that the governor is given considerable
political sway in the judicial selection process. The governor
selects the public members and the governor gets to make a
political selection among the most meritorious of the
candidates. She said the public is involved throughout the
process through the public members on the Council, solicitation
of input from the public on the candidates, public hearings
where the public is invited, and - if the candidates so choose -
the public can attend their interview by the Council. She
offered her belief that Alaska gives its citizens more
information on judicial candidates and judges than any other
state in the country.
JUDGE ANDREWS expressed concern that SJR 21 was a poorly veiled
attempt by a narrow outside money interest to try to hijack the
Alaska judiciary for its own purposes. She said that a recent
lawsuit claiming that the Judicial Council selection and
retention practices violated the U.S. Constitution was thrown
out, but SJR 21 was essentially that lawsuit reformulated. She
suggested the committee look to see who was funding the
lobbyists pushing this legislation. She emphasized that her
interest is in having fair and impartial courts that are made up
of the best lawyers that can be found for each position. The
Judicial Council has always delivered on the promise to give
only the names of the highest caliber to the governor who then
can select on any basis he/she chooses. She said she's been in
Alaska long enough to see administrations dominated by either
republicans or democrats, but the courts have always remained
outside the partisan, political battles. SJR 21 attempts to
change that balance and throws the court into a political stew
in violation of the wisdom of the constitutional drafters. She
urged the committee members to follow their oath of office to
uphold and defend the Alaska Constitution, because SJR 21 does
neither.
2:47:54 PM
MICHAEL PAULEY, Alaska Family Action (AFA), explained that AFA
was the legislative advocacy arm of the Alaska Family Council
(AFC). He said that AFC supports the goal of SJR 21 to increase
public involvement in the process by which judges in Alaska are
selected, evaluated, and retained. He cited other states that
vary widely in the number of persons who serve on judicial
nominating commissions to illustrate that the original proposal
in SJR 21 to have a 16 member Judicial Council was hardly
radical or untried and that the proposed 10-member council was
mainstream.
MR. PAULEY said that AFC believes that the most important issue
that SJR 21 addresses is the proportional representation between
those who represent the Alaska Bar Association versus those who
represent the general public. He argued that the system wasn't
balanced because the attorneys on the Council represent just one
half of one percent of the population of the state, whereas the
three public members represent the other 731,000 Alaskans who
are served by the court system. He said this system shifts
enormous power away from the general public and concentrates it
in the hands of those who make a living practicing law in front
of judges.
He opined that adding more public members would provide a
valuable check on the ability of Bar Association members to vote
as a block to prevent clearly qualified judicial applicants from
being nominated for the governor's consideration. He discussed
the tie votes in the last two years and pointed out that tie
votes on supreme court candidates weren't that rare. He said
that two of the five seats on the Alaska Supreme Court were
filled by a process where the attorney members and the chief
justice voted as a block to overrule the unanimous choice of the
public members, and the public doesn't know why because the
deliberations occurred behind closed doors.
MR. PAULEY said that one reason that AFC believes that SJR 21 is
good public policy is that it will make those kinds of tie votes
rare if not impossible. A larger commission with an odd number
of regular voting members is statistically less likely to
experience tie votes. He described the language in Section 1.2
as the most important words in the Alaska Constitution and
opined that SJR 21 was consistent with that constitutional
heritage.
2:54:10 PM
TENA WILLIAMS, representing herself, Ketchikan, Alaska,
testified in opposition to SJR 21. She relayed that she served
on the Judicial Council for six years and found that the system
works well. She said she believes that adding three more public
members would bring imbalance and increase the likelihood of
factions and divisions that could derail the Council's
effectiveness with reverberating consequences. She said that
despite what some fear, her experience was that there weren't
major divisions between attorney and public members. She
stressed that Council members vote their conscience on every
applicant and maintained that was never any vote trading or
effort to create alliances during her tenure. She said the
Judicial Council was designed to keep politics out of the
process, and she fears that weighting the membership in favor of
governor appointees would introduce partisan politics. This
would have a damaging effect on the quality of the state's
judiciary because the best applicants wouldn't necessarily be
nominated, just the best-connected.
MS. WILLIAMS stated that during her six-year tenure the Council
always acted carefully and deliberately when it made decisions.
Each member had an opportunity to ask questions of each
applicant and offer their thoughts to the full Council after
each interview. Each member had an equal voice. She worried that
that might not be the case if the balance is shifted in favor of
more executive appointees.
CHAIR COGHILL asked Ms. Williams to submit her comments in
writing.
MS. WILLIAMS concluded her comments stating her opposition to
changing the makeup of the Judicial Council. She agreed with
both Elaine Andrews and Alexander Bryner that there may be room
for change, but that SJR 21 wasn't the right way to do it.
2:59:37 PM
CHAIR COGHILL held SJR 21 in committee for further
consideration.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB108-DOA-PDA-02-20-14.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 108 |
| SB108-DOA-OPA-02-21-14.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 108 |
| SB108-ACS-TRC-01-31-14.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 108 |
| SB108-LAW-CRIM-02-21-14.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 108 |
| SB 108 - Rule 37.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 108 |
| SB 108 - Collateral Consequences in Alaska.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 108 |
| SB 108 - Section Analysis.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 108 |
| SB 108 - Sponsor Statement.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 108 |
| SB171-LAW-CIV-02-21-14.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 171 |
| SB171-DHSS-CSM-02-21-14.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 171 |
| SB171-DOA-OPA-02-21-14.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 171 |
| Version U Marked Up.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 171 |
| 7 AAC 54.020 Protected Info.docx |
SJUD 2/24/2014 1:30:00 PM |
SB 171 |
| Sectional.docx |
SJUD 2/24/2014 1:30:00 PM |
SB 171 |
| MDTs By 2010.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 171 |
| Sponsor Statement.pdf |
SJUD 2/24/2014 1:30:00 PM |
SB 171 |