Legislature(2001 - 2002)
04/12/2001 09:13 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE JOINT RESOLUTION NO. 22(JUD)
Proposing an amendment to the Constitution of the State of Alaska
relating to the retention elections for justices of the Alaska
Supreme Court and judges of the superior court.
STEPHANIE COLE, Administrative Director, Alaska Court System,
testified via teleconference from Anchorage, indicated that the
Alaska Court System concurred with the position taken by the
judicial council. She stated that the Alaska Court System believed
that the proposed shortening of the periods between retention
elections in the resolution would have a serious effect on the
quality of justice in the State of Alaska. She explained that the
merit selection and retention system currently in place in Alaska
was cited quite often as a model system balancing judicial
independence and judicial accountability. It was a system that
preserved the judges ability to make decisions impartially and
without undue political pressure against the public's rights to
hold the judges accountable. She said that they really felt that
judicial accountability was enormously important and was in no way
inconsistent with judicial independence.
Ms. Cole further explained that the three aspects of judicial
accountability were political accountability, decisional
accountability and behavioral accountability. She noted that each
of those aspects was important and each served a different purpose.
She stated that political accountability was accomplished through
the retention election process, which allowed the public to approve
judges. Decisional accountability was related to the issue of
whether a judge was correct or incorrect in a particular decision
and it was accomplished through the appellate process as the case
went up for appeal. Behavioral accountability would come into play
when judicial misconduct was at issue and it was provided through
the judicial discipline process. She warned that when they start
proposing to shorten retention terms in the way that SJR 22 would
do then they create a situation where they start blurring the lines
between political accountability and decisional accountability to
the detriment of the justice system. She pointed out that the
current retention terms were in the mainstream of retention terms
around the country.
Ms. Cole further stated that while their role as legislators was in
large part to reflect the will of the majority and their
constituents, the role of the judge was to protect the minority
against which the will of the majority should never be able to
prevail. She indicated that the judge must apply the law to a set
of facts without regard to the political atmosphere or the will of
the majority. She noted that this was very difficult and often an
unpopular task, but it was enhanced by the current system that
provided some protection against a judge being punished politically
for a particular decision. She urged that when they start
shortening the period between retention elections then it becomes
more likely that political campaigns would be waged against
individual judges because of a single unpopular decision. She
explained that as campaigns were mounted against judges then judges
could and would respond with counter campaigns. She noted that it
had become a serious public concern throughout the country, because
it could compromise a judge's ability to rule neutrally and be
perceived as neutral.
SFC 01 # 73, Side B 10:01 AM
Ms. Cole continued that judges needed to be evaluated at regular
intervals about how they handled all their cases instead of how
they handled one or two highly-visible cases. She stressed that
the legal system commanded allegiance only when it commanded
respect and it only commanded respect when the public believed that
the judges were neutral. She expressed grave concern that by
shortening the period between retention elections it would also
discourage qualified applicants from seeking judicial positions.
She noted that judicial salaries were currently dropping. She
concluded that the Alaska Court System was opposed to SJR 22.
Senator Ward requested clarification that Ms. Cole had stated that
the role of the state was to protect the minority and the role of
the legislature was to protect the majority.
Ms. Cole clarified that, generally, the role of the legislature was
to protect the rights of the constituents or the majority, whereas,
the primary role of a judge was to protect the rights of the
minority against which the will of the majority should never
prevail. She further clarified that she had not intended to say
that the legislature did not represent the minority, but rather
that it was the role of the judge to protect the rights of the
minority against infringements.
Senator Ward spoke to the sovereign rights of the individual
regardless of whether they were in the minority or the majority.
Senator Leman referred to Ms. Cole's comment about Alaska being a
model of the system. He argued that it was not really a model that
would get the most qualified judges.
WILLIAM COTTON, Alaska Judicial Council, testified via
teleconference from Anchorage, responded to Senator Leman's
comments. He stressed that almost every decision made by the
judicial council was unanimous. He stated that the council opposed
SJR 22, because they believed it would be counterproductive to
their goal of encouraging judicial excellence. He echoed some of
Ms. Cole's comments. He indicated that the council urged them to
think long and hard before upsetting the system and vote against
SJR 22.
Co-Chair Donley mentioned that 20 other states had merit selection
retention laws similar to Alaska. He noted that three of those 20
states had the same retention terms proposed by SJR 22. He
wondered if that was also Mr. Cotton's understanding. He pointed
out that in Kansas each community could choose whether or not they
wanted to conduct a direct election or use an appointment retention
system. He said that it was a 50/50 split statewide. He also
referred to Oklahoma and indicated that two of the 20 states that
allegedly had the same system as Alaska, in fact, had a significant
number of their judges elected.
AT EASE 10:19 AM/10:24 AM
Mr. Cotton explained that many of the states nationwide were very
different from Alaska in that rather than having a statewide system
they had municipal courts, county courts and state courts. He said
that the courts in the United States had three basic systems: a
merit selection system, similar to Alaska; appointed system, where
the Governor appoints judges; and an elected system.
Co-Chair Donley pointed out that they did have a unified court
system. He indicated that other states had the flexibility to
select other systems. He noted that it was not accurate to say the
other 20 states used a retention system. He wondered what the
criteria were on the surveys.
Mr. Cotton indicated that they did report all the survey
information. He noted that they also reported detailed demographic
information. He said that they promised confidentiality in order
to get accurate information.
Co-Chair Donley wondered if all the responses were included in the
information given to the public.
Mr. Cotton replied that the information was disseminated in several
different ways. He noted that everyone that responded got his or
her numbers reported.
Co-Chair Donley wondered if the distinction between those with
direct personal experience and those with just an opinion were
carried over into the recommendation process.
Mr. Cotton explained that they did report the different levels of
professional experience.
Judge Robinowitz, supreme justice, Court of Alaska, pointed out
that what they were dealing with was one issue and that being a
periodic evaluation of judges under a merit selection system.
There use to be no accountability and they rejected that and wanted
the judiciary to be accountable and then a judge would be elected
on a partisan ballot and it was too compromising to the judges. He
explained that they came up with a periodic retention and election
system. He asked the Committee if it has worked. He assured the
Committee that the judges were aware of the accountability that was
built into Article 4 of the Constitution of the State of Alaska.
He said that his impression was that the system was working. He
urged that they not change it if it was working. He said that sure
over 20 or 30 years they would get some bad opinions, but he noted
that the thousands of opinions that stand up under scrutiny were a
service to the system. He opined that if they truncate every term
into a four to six year term they would dilute the voters analysis
of a judges particular record. He pointed out that Alaska was able
to get more information to the voter. He pleaded with the
Committee that the issue was independence versus accountability and
they were dealing with the Constitution of the State of Alaska. He
stressed that they should not change something that was working.
Senator Donley wondered what the debate was in forming our
government.
Judge Rabinowitz recollected that ten years and six years struck
the appropriate balance on undue pressure on judges and the
people's right to exercise a check and accountability on judges.
These were the appropriate time frames. In 1955 this was an
experiment and he noted that the Constitution was still an
experiment. He pointed out that what they had to do in the court
system was gradually come into maturation. He stated that the test
of time has worked. He said that they needed to strike an
appropriate balance between accountability and allowing the judges
to perform their judicial functions.
Co-Chair Donley wondered what the difference was in how society and
laws had evolved since the 1950s. He suggested that it would have
been difficult for the people in the 1950s to have envisioned how
the courts would have evolved.
Judge Rabinowitz commented that this was almost Political Science
101. He explained that they were a passive institution that did
not initiate litigation. He said that they might go four or five
years without seeing a case at the appellate level that had
statewide appeal. With regards to the question of whether the
courts have become more radical he suggested that they take a look
at Marbury (ph) vs. Madison. He explained that out of the three
branches of government the judiciary was the one that was going to
decide what was constitutional and would bind the three branches of
government. He urged that this was going on from the inception of
government and over time it had proven to work. He pointed out
that they had to draft the Constitution in broad terms and they hit
on a brilliant solution. He said that he did not feel it was a
reflection of an activist court. He would not label his colleagues
as activists.
Co-Chair Donley wondered what court changed the standards for
public interest litigation and the professed intent of the court
was to promote more cases coming to them and more involved in
social issues.
Judge Rabinowitz advised that he had never seen any indication over
the years that a justice had a political or philosophical agenda
imposed on the court. Believe it or not they took the cases as
they came and no one dominated the court. He reiterated that the
system was working.
LES GARA, testified via teleconference from Anchorage, expressed
that in 1955 the founding fathers and mothers worked to create as
credible a judiciary as possible. He urged that they came up with
for this nation a model as an impartial judiciary. He said that
they came up with the best system yet. He noted that they
considered what they did and they debated what they did and they
decided that reducing the retention terms was a bad idea. He
referred to the idea that the judges currently were more radical.
He pointed out that in the 1950s there was the same cries that
judges were radical.
SFC 01 # 74, Side A 10:55 AM
Mr. Gara noted that the work done in 1955 was good work and agreed
with Judge Rabinowitz that there has been nothing to encourage
changing it now. He urged the Committee to go back and read
through the constitutional debates.
Co-Chair Kelly frustrated about some of the testimony that the
deference to the constitutional delegates of 1955 that the same
people say that the Constitution was a living document. Ignoring
the fact that they put for us a method of changing the
constitution. He pointed out that the delegates in 1955 probably
never imaged that the courts would be taking the kind of liberties
that they are taking currently. Doubt that they ever imagined that
the courts would be taking the kind of freedoms that they have been
taking. The right of appropriation belongs to the legislature.
Only convenient when it suits their purposes.
Bruce Weyrauch, President, Alaska Bar Association, believed that an
independent form of judiciary is critical to the government. The
more the political process moves the retention level down the less
they could provide the clients in the private sector.
[Heard and Held]
AT EASE 10:58 AM/10:59 AM
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