Legislature(2001 - 2002)

04/15/2002 02:36 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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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