Legislature(2001 - 2002)
05/05/2001 01:10 PM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 159-APPEALS COURT JUDGES RETENTION SENATOR DONLEY described the bill as a Senate Judiciary Committee bill that would shorten the terms of office of the court of appeals from eight to four years. Pursuant to research that was performed after the bill was drafted, he suggested a committee substitute to change the four-year term to six years. There are various systems for selection and retaining judges across the United States. The committee's research shows there are only eight pure merit states of which Alaska is one. Of those states, the average length of office is about 7.2 years for appellate courts so Alaska is above the average for the merit states. Many other states, even those using a mix of the merit system, have terms that are less than Alaska's. In fact, the only states with longer terms than Alaska's are those that use the merit system and have the Senate confirm the appointments. Given that eight years is above the national average and that most other states elect the judges directly, it appears that Alaska has less judicial oversight and longer terms than most states that use the merit system. He feels it would be better public policy to have a six year term rather than the four years the bill calls for. This is more in line with the national average, particularly since there is no direct election of judges, just the retention election option. Number 2109 CHRIS CHRISTENSEN, Deputy Administrative Director of the Alaska Court System, testified SB 159 would negatively impact the criminal justice system in Alaska and thus they oppose the legislation. Judges are selected on a rigorous merit based system in Alaska. The minutes of the Constitutional Convention reflect the long and careful time spent to put together a system for selecting and retaining judges. They wanted a system that provided for both independence and accountability and selected the Missouri plan as their guide. Judges are selected using the merit system and partisan politics are kept out of the selection and appointment process as much as possible. They then stand for retention on a regularly scheduled basis. This has worked well and there is no history of official corruption in the Alaskan judiciary, unlike many states. If Alaskan attorneys are polled, they will say the quality of the bench today is better than it has ever been. There are many hard working and well respected attorneys who are committed to what they do. He said he is perplexed to see legislation that affects the court of appeals because it does not deal with controversial cases. It hears criminal appeals in a generally non-controversial manner and it applies the most liberal bill of rights in the country to the laws the legislature passes. Judicial independence is the ability to judge a case and to interpret and apply the law as free as possible from external influences and pressures. That is what the court of appeal does now and SB 159 would effectively reduce the ability to judge a case free of external pressure simply because judges would have to face the voters at much shorter intervals. Shorter intervals make it more likely that political campaigns would be waged against judges because of single unpopular decisions. Longer terms would give voters a longer term perspective on a judge's job performance. Although it is stated that this legislation is to bring the retention periods for Alaska's judges more in line with other states he respectfully disagrees with the conclusions drawn by Senator Donley because his data is out of date. Currently there are 39 states with an intermediate court of appeals and 18 of those use some variation of the merit selection and retention system. Of those 18, 10 have terms of 8 or more years, 8 have terms of less than 8 years. Therefore, Alaska's 8 year term is right in the middle. There are 21 states without a merit system for their court of appeals and 10 of those have terms of 8 years or longer and 11 have terms of less than 8 years. Again, Alaska is in the middle. If you add the totals for the 39 states you will see that 20 have terms of 8 years or longer and 19 have terms of less than 8 years. Alaska's terms are not longer than others they are right in the middle. Next, he used averages as Senator Donley did in his memo. This proved problematic since there are 2 states that appoint judges until age 70. If you were to look at the current court of appeals and apply the age 70 standard, one would have a term of greater than 20 years and two would have terms of more than 25 years. He called those two "age 70" states 15 year terms because most of Alaska's judges serve 15 years. Of the merit selection states the average is 7.9 years and of the non-merit states the average is 7.8 years. This shows that Alaska is at the average. It is argued that judges of the court of appeals in Alaska have less accountability than in most other states but they don't have less accountability than the four states with courts of appeal that use appointments without any retention process. In fact, he doesn't believe they have less accountability than judges in most of the 16 other states that use the merit selection system. They probably do have less accountability than in the 17 states that conduct elections but, according to the framers of the constitution, that is good. Many of the framers came from states with contested judicial elections and were well aware of the pitfalls in that type of accountability. Judges who are challenged in retention elections do have the ability to raise money and oppose the election but it's not a good idea to have a system where criminal court judges must raise money to defend themselves from challenges on a regular basis. Each litigant should have the confidence of knowing that their case will be heard on its merits and not on the basis of public or political pressure. The law commands allegiance only because it commands respect and it can only do that if the public believes their judges are neutral. Reducing the term between retention elections would also discourage qualified applicants from seeking judicial positions. In response to Senator Donley's recommendation that the term in the proposal be raised from four to six years he noted that every person appointed to the court of appeals faces the voters at the first general election, three years after appointment. The eight year retention term only starts after they have faced the voters that first time. This gives voters the chance to look at a judge right away and evaluate the job. Currently supreme court judges have a 10 year retention term, superior court judges have six years, and the district court four years. Eight years for the court of appeals fits right in and that is why the legislature chose eight years in 1980 when it created the court of appeals. Six years would give it the same term as the superior court, which is a court with less responsibility and has to make fewer controversial decisions. To compromise and change the term to six years would have a very negative affect on the court of appeals. SENATOR PHILLIPS asked when the court of appeals was established. MR. CHRISTENSEN said he thought it was 1980. CHAIRMAN THERRIAULT noted that Bill Cotton was online to testify and that a three page sheet from the Alaska Judicial Council was in committee packets. BILL COTTON, Executive Director of the Alaska Judicial Council, testified that the council is a small agency in the judicial branch of government and separate from the court system. They are charged with investigating and screening judicial applicants and with evaluating the performance of judges and making the evaluation information and retention recommendations available to the public. The council opposes SB 159 for a number of reasons; first he wanted to refute the statement made by Senator Donley that Alaska has less oversight and public scrutiny of judges than most other states. This is simply not the case even in the states that have shorter terms. There is not another state that surveys every attorney in the state, mails a summary of the survey to every voter and puts the detail of the survey on the Internet. The implication that Alaska Court of Appeals terms are longer than other states is not the case. Most states that have intermediate appellate courts have terms that are eight years or longer. The council believes this would have a marginal discouraging effect on qualified applicants, particularly those attorneys with stable practices in the private sector. By increasing the number of judges that are on the ballot for review the focus is taken off the individual judges and placed on the group. Last year there were 30 judges up for review which made it difficult to thoroughly evaluate each one and difficult for the voters to clearly understand each judge's record. Although the intent of the bill is to increase review, it may have the opposite effect. Costs will be increased marginally if SB 159 passes. The Judicial Council filed a small fiscal note and there will probably be a small cost from the Division of Elections. Most importantly, this upsets the balance setup by the framers of the constitution between judicial accountability and judicial independence. Judicial accountability is a critical element of the council's job but judicial independence is critical as well. It is one of the basic principles upon which our country was founded; judges are supposed to protect the rights of citizens regardless of who is displeased. "We want judges who are fair, fast, polite, smart but we want and need judges who decide cases on the law not who the parties are and not who is going to make campaign contributions and not what is temporarily popular." The different governmental branches have different purposes. The governor and legislature is elected to carry out a political agenda while judges are selected to decide cases on the law and the constitution. The delegates to the constitutional convention discussed the issue of selecting, evaluating and retaining judges at length and they voted overwhelmingly to not reduce the term of the only appellate court discussed which was the supreme court from ten to six years. On the whole, the system is excellent and it is respected across the country and world. The council urges the balance not be upset with the proposal. CHAIRMAN THERRIAULT asked Senator Donley whether he had a question about Mr. Cotton's statistics. SENATOR DONLEY replied he would like to respond generally to the testimonies. First he would like copies of Mr. Christensen's research so he could compare the differences with his research. He disagreed with the last research they received from the Judicial Council. States that were listed as merit states had elected judges. There are few states that have a pure merit system like Alaska does. His research indicates that just seven states don't have either legislative confirmation or "some other lower level of judges being elected." It's important that there is greater accountability for the lower level judges because that affects what cases the higher level judges will see. Therefore, "to ignore the fact that you're electing the lower judges when you talk about the accountability of the upper judges, I think, is not logical and not fair." He didn't agree with the argument that reducing length of the term would slow the election process because people wouldn't have time to review all the judge's records. He pointed out there are only three judges on the court of appeals. He didn't agree that changing the length of the term for the court of appeals would upset the balance of the constitution because it was created by the legislature years after the constitution was written. SENATOR DONLEY thought a vast number of Alaskans would agree with him that eight years is too long between elections for this type of officials. In fact, the polling numbers the legislative majority gathered shows the public agrees. HB 159 does not abandon the merit system, "what's before this committee is going from eight to four or eight to six [years] or whatever option there is and I'm suggesting from eight to four, I'm not suggesting-or eight to six- I'm not suggesting the abandoning of the merit system here. But I do suggest that we are an extraordinarily generous and long terms of office compared to the lack, through the pure merit system states that are out there and not considering that all these many many the vast majority of states have some degree of elected judicial officials in their process." SENATOR DONLEY disagreed with Mr. Christensen's suggestion that the court of appeals has been uncontroversial. He thought looking at the efforts of the current legislature with respect to evidence of rule 404(b) shows that this court of appeals frequently ignores the intent of the legislature and poses their own political view on the evidence rules. "I say that because, for many years, as judiciary chair, we attempted to simply bring Alaska into conformance with the meaning of evidence rule 404(b)." The effort was to have the language in Alaska be interpreted the same way the federal courts interpreted the language but the court of appeals has blocked that for many years. CHAIRMAN THERRIAULT agreed with the assessments. He asked Senator Donley to look at Mr. Christensen's data and point out any flaws. Although he hasn't felt as much criticism of the court of appeals as Senator Donley, he is probably just unaware of where the problem lay in the situation just described. SENATOR DONLEY gave as another example, the interpretation of the statute that requires the mandatory 99 year sentence for individuals who have committed multiple murders, torture murders, and of murder of a police officer or fireman in the line of duty. The court produced an opinion saying the person had to be notified at the time of sentencing that they might be subject to that sentence. That is very unusual in American jurisprudence because sentencing issues are usually separate than the charging issues. The Department of Law disagreed with this decision and is another example of their being controversial. CHAIRMAN THERRIAULT commented that one of the issues that weighs on him personally is "trying to get good private sector attorneys interested in the judiciary. I think we've had a problem with that and part of it just might be that we've just had democratic governors and they appoint from the end of the spectrum that I would perhaps gravitate to the other end. Tony Knowles is termed out here so we might have a bite at the apple here." With the three year review and then eight year review they are coming up for election twice in an 11 period of time. Three years is probably too short for people see what the judge is about but the original bill was just four years even though the recommendation is to change that to six years. SENATOR DONLEY said he knows the legislation won't be moved that day and he suggested adopting a CS version that was at least six years so the debate over the increment could be over six years rather than four years. CHAIRMAN THERRIAULT said he agreed with that. He moved an amendment to SB 159 to have a draft drawn up that will change "four years" to "six years" and that will be the document that is in committee for discussion purposes. He asked for objection. SENATOR DAVIS said she had no objection but she would move the amendment for him since he is the chair. CHAIRMAN THERRIAULT thanked Senator Davis. There were no objections to the amendment. The bill was held in committee.