Legislature(2001 - 2002)
04/15/2002 02:36 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.