Legislature(1999 - 2000)
03/29/2000 01:54 PM Senate JUD
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* first hearing in first committee of referral
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SJR 15-CONST. AM: APPOINTMENT OF JUDGES
MR. MIKE PAULEY, staff aid to Senator Leman, stated there have been
several legislative proposals over the last several years to reform
Alaska's judiciary, and while they have varied in the particulars,
all of the reform proposals have stemmed from the common premise
that the Alaska judicial system is broken. The problem is that
there are judges who are not interpreting the law, but actually
writing the law. They are examining the laws of the constitution
not on the basis of original intent or long standing legal
tradition but based on personal bias. Many Alaskans have taken
comfort in the fact that erroneous decisions can be overridden
through the process of a constitutional amendment. However, that
process was significantly undermined in the Bess v Ulmer decision
in which the court prevented Alaskans from voting on a
constitutional amendment and edited the language of another.
MR. PAULEY said the amendment before the committee proposes modest
changes to the judicial selection process. It expands the pool of
talent from which the governor can make appointments to fill
judicial vacancies. It will require legislative confirmation of
judicial nominees, and it will provide for more frequent retention
elections.
MR. PAULEY commented that SJR 15 takes a small step towards
restoring a system of checks and balances among the three branches
of government. The need for this is reflected in a comment by the
twelfth chief justice of the U.S. Supreme Court, Harlan Fiske
Stone, who lived from 1872 to 1946. Justice Stone observed, "While
unconstitutional exercise of power by the executive or legislative
branches of the government is subject to judicial restraint, the
only check on our own exercise of power is own sense of self
restraint."
CHAIRMAN TAYLOR commented that the CS only speaks to retention
elections and not an expansion of the pool from which Mr. Pauley is
speaking.
Number 823
MR. PAULEY clarified he was speaking to the original bill because
the committee had not adopted the CS.
SENATOR DONLEY moved to adopt CSSJR 15, version 1-LS0596\G,
Luckhaupt, dated 3/17/00, having the supreme court subject to
retention elections every six years and the superior court subject
to retention elections every four years. There being no objection,
CSSJR 15am was adopted.
SJR 15-CONST. AM: APPOINTMENT OF JUDGES
MS. STEPHANIE COLE, Administrative Director for the Alaska Court
System, said the retention system that is currently in place in
Alaska is often cited as a national model--a model that balances
judicial accountability against judicial independence preserving a
judge's ability to make decisions impartially against the public's
very important right to hold judges accountable. Judicial
accountability is a concern to the legislature and also to the
court. When talking about judicial accountability there are three
types of accountability--political, decisional and behavioral.
Political accountability is what is accomplished through a
retention election, where the public can either approve or remove
a judge. Decisional accountability is related to the issue of
whether a judge, in a particular case, is correct or incorrect--
this type of accountability usually comes through the appellate
process. Behavioral accountability is involved when dealing with
judicial misconduct--primarily this is accomplished through the
judicial discipline system. Shortening the retention period, that
is proposed in the CS, creates a situation where the line between
political accountability and decisional accountability start to
blur, much to the detriment of the justice system. The period
between judicial retention elections in Alaska is very middle of
the road, they are in the middle of where most merit selections
are. If the retention periods are shortened there will be a
situation where judges are under increased pressure to rule in
accord with the current political or public atmosphere. The whole
system of government is set up to avoid this from happening. An
important obligation of a judge is to preserve and protect the
rights of the minority against which the will of the majority
should never be able to prevail. By shortening retention periods,
it is more likely that political campaigns will be waged against
individual judges because of an unpopular decision.
Tape 00-17, Side B
MS. COLE said that deciding high profile cases is a difficult thing
for judges to do at any time but it is especially difficult when a
judge is facing an eminent retention election. The court feels it
would be a backward step to increase the frequency of retention
elections. More frequent campaigns against judges up for election
is a predictable effect, and as campaigns are mounted against
judges it can be expected that judges can and will mount counter
campaigns. Judicial fund raising and campaigning is becoming a
national issue in this country and it brings in the issue of a
judges neutrality. Only a few cases become controversial, and
judges need to be evaluated at regular paced intervals on how they
are handling all of their cases not just the highly visible cases.
MS. COLE commented that aside from judicial independence concerns,
shortening the period between retention elections will have the
effect of de-qualifying the qualified applicants seeking judicial
positions. It will be harder to hold onto qualified people because
their job security is less certain with more frequent retention
elections.
Ms. Cole read a quote by Edward Madiera, Chairman for the ABA's
Commission on Separation of Powers and Judicial Independence:
"Judicial independence is not for the protection of judges, but for
the protection of the public." The judicial system feels that
protecting the structural integrity of the system is paramount, and
this resolution should not move forward.
Number 2242
MR. BILL COTTON, Director for the Judicial Council, stated that the
Judicial Council is an independent agency in the judicial branch of
government. They participate in the selection of a judge and the
evaluation of a judge who is up for retention. After this process,
they make their recommendations and information known to the
public. The Judicial Council's job is to try to assure as much
excellence in the judicial branch and the judiciary as specifically
as it can. This involves balancing judicial accountability and
judicial independence. The Alaska Judicial Council does a more
thorough evaluation of judges and makes more information public
than any other state in the country. Alaska is a model for other
states. The Judicial Council conducts surveys of police officers,
attorneys, jurists, child protection workers, etc. This oversight
tends to keep judges more responsive to the electorate. One of the
basic principles this country was founded on is judicial
independence--citizens constitutional rights need to be protected
even if the powers that be would like a constitutional amendment
forgotten. The Council opposes shortening the retention term
because it believes the balance of judicial accountability will be
upset. It will be harder to get applicants, and it is critical to
get quality applicants. By decreasing the stability of the job,
there will be less incentive for quality private practitioners to
apply for these positions. Costs will be increased in terms of the
state budget, and putting more judges on the ballot will decrease
the focus that the council and the electorate will bring against
individual judges. Superior court judges are up once every six
years and the judicial council does a preliminary evaluation two
years before that. There is also an attorney and peace officer
survey done twice every six years.
Number 2062
JUSTICE JAY RABINOWITZ commented that what the constitutional
framers of the Alaska constitution intended has been identified and
highlighted by his two colleagues. In his view, the Alaska
constitution is a brilliant compromise between the federal system,
the elected system and the merit system, and the system is not
broken. Alaska's judicial system has been corruption free in terms
of the judges performance of his or her judicial duty, this is a
tribute to the Judicial Council's screening and in the care they
take in the selection process. Now that the CS is in place, Judge
Stewart feels many of his remarks may be redundant, but he does
feel the system has worked well.
JUSTICE RABINOWITZ commented that talented lawyers without
political power and old family connections have been attracted to
Alaska's judicial system. This is a philosophy of the west, if a
person has talent they can apply for and obtain a judicial
position--an individual can control their destiny to a large
extent. This is the brilliance of Alaska's founding fathers, a
compromise between an elected system and merit retention. The
electoral electorate gets more information from the performance of
judges than any other political entity in the country. An educated
electorate is what is wanted and that is what Alaska is getting.
JUSTICE RABINOWITZ noted there is a movement to truncate the
retention period but initially a person in a judicial position has
to run within three years, causing a speedy evaluation and analysis
of the judicial officers performance. The stress on judges is
warranted because it is a trade off between merit selection and
accountability. He congratulated the committee on adopting the CS
and encouraged the legislature to keep the system as it is.
Number 1739
MR. LES GARA, an attorney in private practice in Anchorage,
commented that he echoes what Judge Rabinowitz had to say, and
before the legislature decides to disrupt the compromise that the
constitutional convention made, he urges the committee to look at
what the drafters of the Alaska constitution debated and why they
decided to adopt the system they did. Mr. Gara quoted Mr. Ed Davis
who was a delegate of the constitutional convention in 1955, "All
of us here want an independent judiciary, a judiciary that will not
be swayed by public will at any particular moment. A judiciary
that will not be subject to any political pressure. We've taken
the best means devised yet, to appoint and select qualified judges
and to keep judges free from outside political pressures and to get
rid of judges who are not able to properly do their job." The
constitutional convention looked at all of the competing proposals
of the time and they reached a compromise that has worked very
well.
Mr. Gara is happy the committee decided to drop the other
provisions of SJR 15, but the remaining provisions also increase
the amount of public pressure on the judiciary beyond what the
delegates in 1955 agreed to and thought was appropriate.
Mr. Gara addressed the statement made by Mr. Pauley of Senator
Lemans office that, "what we have here is a system that is broken,
that has judges bringing in their political biases and their
personal biases--deciding cases on their personal biases." This is
not what happens. One of decisions that spurred the bill prior to
SJR 15 was a decision by Judge Michalski in Anchorage that lent
some support to the idea that maybe homosexual marriage was legal
under Alaska law. Judge Michalski decided the case based upon what
he believed the law was, he did not decide the case based on his
personal biases, he based the case on what he thought the law
required.
MR. GARA said when a political issue is being debated, there should
be a politically biased decision--the legislature debates politics.
In court a case should not be decided by a judge who bases the case
on how the decision will look in the newspaper the next day.
Judges need to consider the law and all of the facts, but by
increasing the number of retention elections judges will be
encouraged to issue sound bite decisions.
Number 1477
MR. DAVID BUNDY, attorney and member of the Board of Governors for
the Alaska Bar Association, stated the legislature should adopt the
resolution that is currently proposed. There is no reason to
shorten retention terms for members of the judiciary. The system
has worked well and the impetus to change it is "wrongly headed."
It is the nature of the advisory process that there will always be
unhappy litigants and members of the public who object to
decisions. This does not say that judges are not doing their job,
it says that judges are doing their job because they are deciding
difficult issues on which people have strong feelings. It is the
duty of the judicial department to say what the law is. Subjecting
judges to elections in which they will have to engage in fund
raising is undesirable in the extreme because the only people who
will contribute money to judicial candidates are lawyers. Judges
need to be independent of organized interest groups and organized
political groups.
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