Legislature(2001 - 2002)

05/05/2001 01:10 PM STA

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

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