Legislature(2001 - 2002)
04/02/2001 01:41 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY COMMITTEE
April 2, 2001
1:41 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Dave Donley, Vice Chair
Senator Gene Therriault
Senator Johnny Ellis
MEMBERS ABSENT
Senator John Cowdery
COMMITTEE CALENDAR
SENATE CS FOR CS FOR SS FOR HOUSE BILL NO. 13(CRA)
"An Act relating to municipal service areas and providing for voter
approval of the formation, alteration, or abolishment of certain
service areas."
HEARD AND HELD
SENATE JOINT RESOLUTION NO. 22
Proposing an amendment to the Constitution of the State of Alaska
relating to the retention elections for justices of the Alaska
Supreme Court and judges of the superior court.
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
HB 13 - See Community and Regional Affairs minutes dated 3/19/01.
WITNESS REGISTER
Representative Con Bunde
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of HB 13
Mr. Jeffrey Bush, Deputy Commissioner
Department of Commerce & Economic Development
PO Box 110800
Juneau, Alaska 99811-0800
POSITION STATEMENT: Opposed all of HB 13 except Sec. 4
Ms. Jean Woods
Box 827
Palmer, Alaska 99645
POSITION STATEMENT: Supported HB 13
Mr. Joe Balash
Staff Aide to Senator Therriault
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified on HB 13
Ms. Stephanie Cole, Administrative Director
Alaska Court System
303 K Street
Anchorage, Alaska 99501-2084
POSITION STATEMENT: Opposed to SJR 22
Mr. William T. Cotton, Executive Director
Alaska Commission on Judicial Conduct
310 K Street, Suite 301
Anchorage, Alaska 99501
POSITION STATEMENT: Opposed to SJR 22
Mr. Bruce Weyhrauch
Law Offices of Bruce Weyhrauch
114 South Franklin Street, Suite 200
Juneau, Alaska 99801
POSITION STATEMENT: Opposed to SJR 22
Senior Justice Jay Rabinowitz
Alaska Court System
303 K Street
Juneau, Alaska 99501-2084
POSITION STATEMENT: Opposed to SJR 22
Mr. Les Gara
Attorney
1242 West 10th Avenue
Anchorage, Alaska 99501
POSITION STATEMENT: Opposed to SJR 22
ACTION NARRATIVE
TAPE 01-14, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting
to order at 1:41 p.m. Senator Therriault, Senator Ellis, and
Chairman Taylor were present. Senator Donley arrived at 2:01 p.m.
Chairman Taylor announced the first order of business would be HB
13.
HB 13-SERVICE AREAS: VOTER APPROVAL/TAX ZONES
REPRESENTATIVE CON BUNDE, sponsor of HB 13, said the bill was about
smaller government, local control, and privatization. HB 13 allows
people in limited service areas, where changes are needed, to have
a vote on the changes. There are 200 service areas in Alaska with
Fairbanks having more than 100. In order for the borough and
Municipality of Anchorage to combine, people who had limited road
service areas had to be assured a right to maintain those areas in
order to convince them that consolidation was a good idea. HB 13
guarantees the status quo in areas where people are contemplating
consolidations. HB 13 says that if there is to be a consolidation
alteration there has to be a majority vote by both entities, the
service area and the surrounding area. The bill allows for the
consolidation of many service areas for administrative savings
while maintaining a differential taxation rate. Improved
subdivisions with a higher level of road service and areas with
more traditional Alaskan roads with a lower level of road service
can each maintain their own level of service. The bill last year
only applied to areas with 60,000 people or more and HB 13 applies
to everyone in Alaska.
CHAIRMAN TAYLOR asked how HB 13 would impact home rule cities.
REPRESENTATIVE BUNDE said there are currently 53 limitations in
statute on home rule cities and HB 13 would add one more statute.
CHAIRMAN TAYLOR said he thought HB 13 would impact home rule
cities, and that the primary thrust of HB 13 was to "go after"
unified city/borough governments.
REPRESENTATIVE BUNDE said unified city/borough governments were the
primary thrust of HB 13 but it also would have an impact on home
rule cities.
CHAIRMAN TAYLOR asked what that impact would be.
REPRESENTATIVE BUNDE said there would be an impact if the cities
had service areas.
CHAIRMAN TAYLOR asked how home rule cities with service areas would
be treated differently after the passage of HB 13.
REPRESENTATIVE BUNDE said an alteration or change in a service area
would require a majority vote of the entire community before any
change could take place.
CHAIRMAN TAYLOR said home rule cities now have authority for a
differential tax structure but unified cities, because of
city/borough unification, do not. He asked if HB 13 would change
that so unified cities would have a differential tax structure.
REPRESENTATIVE BUNDE said unified cities might now have a
differential tax structure.
Number 376
SENATOR THERRIAULT said last year he was concerned with the expense
of a certain fire service area. He asked if this had been
addressed on page 2, lines 19 through 22.
REPRESENTATIVE BUNDE said yes.
SENATOR THERRIAULT asked how the language worked if there was an
existing service area with a valley portion and a hill portion and
the people on the hill needed their roads sanded, which would be an
additional expense. Would the new language allow an existing
service area to "carve up a certain portion and go to the borough
assembly and ask that they pay an extra quarter mill for something
of that nature to allow for the sanding on their roads because the
roads down the valley don't need to be sanded?"
REPRESENTATIVE BUNDE replied it would not affect an existing
service area that could subdivide and a majority vote of both
entities would be needed to subdivide. HB 13 calls for
differential taxation if two entities want to combine for
administrative savings within a subdivision.
SENATOR THERRIAULT said the mill rate within a service area is now
voted on by the residents of that area. If there were a thousand
people living in the valley and 250 people up on the hill, he asked
if the people in the valley would be able to impose a higher
millage rate on the people up the hill.
REPRESENTATIVE BUNDE replied yes, because the entire service area
would vote it on.
SENATOR THERRIAULT asked if Representative Bunde would have an
objection to adding language that said something to the effect of:
"generated differential millage rate monies have to be spent within
the area that generated it."
REPRESENTATIVE BUNDE replied no.
SENATOR THERRIAULT said that HB 13 talks about subsets within the
service area, but he did not know if there was language covering
that.
REPRESENTATIVE BUNDE said subsets would still be separate service
areas and they would only be combined to save administrative fees.
Subsets would still have a differential taxation rate with the
intent that Group A's level of taxation be spent on Group A and
Group B's level of taxation be spent on Group B.
Number 715
CHAIRMAN TAYLOR said this could be a "real can of worms." It would
be difficult to draft language that would specifically allocate
where the funds were to be spent within a service area. He noted
that whether this could or should be done would be a serious
question.
REPRESENTATIVE BUNDE thought he had not explained the intent well.
He said if there were two service areas, Group A and Group B, and
they were combined and had differential taxation rates, the monies
assessed on Group A would be spent on Group A and monies assessed
on Group B would be spent on Group B. There would be no crossing
of funds.
CHAIRMAN TAYLOR said he was not sure of this.
Number 785
MR. JEFFERY BUSH, Deputy Commissioner, Department of Community and
Economic Development (DCED), started by following up on some of the
questions asked earlier in the meeting. He said the administration
did not oppose Sec. 4 of HB 13 but it was opposed to the rest of
the bill. Sec. 4 allows the assembly, by ordnance, to establish
differential taxation rates within service areas and that can be
within an existing area. This is to allow for the consolidation of
services areas so they can combine and have differential rates.
Another question was regarding the requirement that additional
assessments be used for the people who were assessed. HB 13 allows
this by saying it allows for different levels of taxation to occur
"for a different level of services than provided generally in the
service areas." The implication being that when there are
differential levels of service, a different differential rate can
be assessed.
MR. BUSH said this bill came to the Governor last year as HB 133.
He vetoed it and he still finds it objectionable. The objection is
not to differential taxation, the objection is to the rest of the
bill, which the Governor views as limiting the power of municipal
governments and boroughs by requiring service areas, which are not
a government entity, to veto powers at the borough, which could
otherwise be exercised at the borough, level. Alaska's
constitution creates borough governments and there is a dispute
over whether the constitution would even prohibit HB 13 because the
state cannot limit the powers of boroughs except if there is an
overriding state interest, and an overriding state interest has not
been demonstrated in this case. An overriding state interest needs
to be found before the power of boroughs and municipal governments
are limited.
MR. BUSH said the provisions of HB 13 have already been provided
for in the Anchorage Charter. There is nothing that HB 13 does
that could not be done at the local level by local choice. The
administration's objection is that this would be imposed at the
state level on municipal governments.
MR. BUSH said the philosophy being demonstrated is somewhat
inconsistent with the philosophy that is being otherwise debated in
the legislature - the formation of borough governments is being
encouraged and so is the centralization of local powers in
unorganized borough into boroughs. Those efforts are being
undercut by the arguments of HB 13 - that borough governments
should not be the center of power and the power should reside in a
smaller unit at the local level.
Number 1073
CHAIRMAN TAYLOR said on the philosophical question, "when you say
being debated within these halls on the expansion and incentives to
create borough governments," that he did not realize the
administration shared any of those thoughts.
MR. BUSH replied that DCED had for many years consistently
supported those efforts and he had pointed out that this was the
department's position. The administration has no formal position
on that yet.
CHAIRMAN TAYLOR said he was curious as to what the administration's
position might be on the entire subject. He thought this was a
subject worthy of consideration and discussion and he would like
the administration participating. Chairman Taylor asked for a
recap on Senator Therriault's question on whether the funds could
be assessed for specific services and allocated to that particular
portion of the service area.
Number 1226
MR. BUSH said HB 13 implies that because it allows for increases or
decreases of assessments based upon a different service for a
particular group within a service area, that the adjustment be made
on the amount collected. There is no requirement that the service
area account for an exact dollar for dollar amount.
SENATOR THERRIAULT said if it were an extra quarter mill rate, it
would just be that, multiplied times the value of the homes in the
sub zone, and he felt that could be accounted for. He asked if Mr.
Bush would see a problem with language that said, "except for
administrative expenses, funds generated by the imposition of a
differential tax in a differential tax zone within a service may
only be used for services within that tax zone."
MR. BUSH said his only concern would be retaining separate accounts
for service areas for the same service. He did not know if
accounting problems would be created if administrative costs were
added. He thought this link should be there but he did not know if
it would be statutorily required.
Number 1380
MS. JEAN WOOD, speaking via teleconference from Palmer, said she
supported HB 13. She felt that local control was the best control
available and she thought the people affected should have a say in
whether they wanted to be included in a service area if that area
were to be changed. At one time the Mat-Su Borough had a
differential taxation rate and when a subdivision in a service area
wanted its roads paved, the property owners were assessed at a
different rate than the rest of the service area.
MR. JOE BALASH, staff to Senator Therriault, said HB 13 does not
prohibit various millage rates from being charged within a given
service area and it does not prohibit one group in the service area
from disproportionately benefiting from that assessment. He said
it is conceivable that a base one mill could be charged on
everyone, with the residents in a given area deciding that the
wealthy people up on the hill should be charged an additional half
mill to receive an additional service that only cost a quarter
mill. The surplus quarter mill would be used to supplement the
rest of the base. This is why legal services suggested that,
conceptually, there should be some type of amendment to state that
the additional funds generated by the differential taxation rate
only be spent within that differential tax zone.
CHAIRMAN TAYLOR noted that the committee had received written
testimony from Mr. Jim Norcross of Willow asking for a limitation
where HB 13 says, "or road service areas affecting not more than
five percent of the total road miles of the service area, within a
two year period."
SENATOR THERRIAULT said he would like to work on an amendment
because he does not want one area to impose a higher millage rate
on another area and then siphon the funds off.
CHAIRMAN TAYLOR suggested that Senator Therriault work with legal
services to clean up the language in a way that would not change
the overall concept of the bill.
CHAIRMAN TAYLOR announced that HB 13 would be held until the next
committee meeting.
Number 1619
SJR 22-CONST. AM: JUDICIAL OFFICERS' TERMS
SENATOR DONLEY said SJR 22 changes the retention terms for
justices. Terms for the supreme court would go from 10 years to
four years and superior court terms would go from six years to four
years. He said SJR 22 would have to be approved by the voters
because it changes the constitution.
SENATOR ELLIS asked "why."
SENATOR DONLEY noted that in the majority of states, judges are
either elected or confirmed by the legislative bodies involved.
Alaska is in the minority of states that has neither of those
processes but it does have retention elections. He said 10 year
terms are too long for having a credible effect upon a judges
performance, good government demands a shorter period. A memo in
the committee packet from the court system only deals with those
states that have retention elections, it does not examine states
that elect judges or states that have a confirmation by legislative
bodies.
SENATOR THERRIAULT said moving from 10 years down to four years was
a big step and he was concerned that this would discourage private
practice lawyers from serving in the judiciary. The system would
end up with a number of people who have spent their entire time in
public service, with little understanding of what a judicial
proceeding costs clientele, reflecting the way judgments come down
and dragging the process out. He was concerned that by taking such
a big step, fewer people from private practice would be willing to
serve in the judiciary where the pay is substantially less.
SENATOR DONLEY said he would not have a problem with six and four
year terms. He noted that according to the court system's response
three other states have six and four year terms.
Number 1798
MS. STEPHANIE COLE, Administrative Director for the Alaska Court
System, said the court system agrees with the Alaska Judicial
Council's assessment of SJR 22. Ms. Cole made the following
comments:
The merit selection and retention process currently in
place in Alaska is often sited nationally as a model,
balancing judicial independence with judicial
accountability, balancing a judges ability to make
decisions impartially and without due political pressure
against the public's important right to hold their judges
accountable.
Judicial accountability is enormously important and there
is nothing incompatible with judicial accountability and
judicial independence. There are three aspects of
judicial accountability - political, decisional, and
behavioral. When talking about political accountability,
with reference to judges, this is the retention election
process and how judges are held accountable to the public
by periodic retention elections. At these elections, the
public is given a large amount of information compiled
and prepared by the Alaska Judicial Council.
Decisional accountability relates to the issue of whether
a judge is correct or incorrect in a particular case.
This is primarily accomplished through the appellate
process and through the route of appeal.
Behavioral accountability comes into play when judicial
misconduct is an issue, this is provided through the
judicial discipline process and in Alaska that is the
Commission on Judicial Conduct. It is the court system's
position that when retention periods are shortened, a
situation is created that starts to blur the distinction
between political accountability and decisional
accountability. The current retention periods are in the
mainstream of most states, and no other state has
retention periods as short as listed in SJR 22. If
retention periods are shortened, a situation is created
where the judge is under increased pressure to rule in
accord with the current political or public atmosphere.
The whole system of government is structured so this will
not happen. While the role of legislators is to respond
in some part to the will of the majority of its
constituents, the role of a judge is very different. A
very large part of what a judge is asked to do is to
protect the rights of a minority against which the rule
of the majority should never be allowed to prevail. A
judge has to apply a set of facts without regard to the
public atmosphere or will of the majority. This is a
difficult and often times unpopular task. The current
system does allow at least some protection against a
judge for being punished politically for a particular
decision that he or she might make. When the period
between retention elections is shortened, it is more
likely that political campaigns would be waged against
individual judges because of single unpopular decisions.
Deciding high profile cases always requires judicial
fortitude but is especially difficult if there is an
eminent retention election. It would be a backward step,
a step toward deciding cases in favor of the more
powerful litigant to increase the frequency of retention
elections. Another predictable result would be more
campaigns against judges standing for election, since
issues and tempers would have less time to be moved from
the spotlight and into a longer term perspective. As
campaigns are mounted against judges, judges have the
right and they will respond with counter campaigns - they
are allowed to do this.
Throughout the country today, there are serious concerns
about judicial fund raising and campaigning. Fund
raising can compromise a judge's ability to rule
neutrally and to be perceived as neutral. Alaska has
over 150,000 cases going through the court system every
year and only a hand full of those are controversial or
of general interest to the public, yet each one of them
is of enormous interest to the people involved in those
particular cases. Judges need to be evaluated at regular
paced intervals about how they are handling all of the
cases, not just one or two highly visible cases. Every
litigant in the court should have the confidence that his
or her case is being heard on the merits, not on the
basis of public or political pressure which can be
brought to bear on a judge. The public would be outraged
if the judge took a survey or political poll to determine
how to rule on a particular case but SJR 22 does move the
judiciary in that direction. The legal system commands
allegiance only when the legal system commands respect
and it only commands respect when the public believes
judges are neutral. It would be a great loss if this
position were eroded.
Aside from judicial independence concerns, the court
thinks the periods between retention elections would
discourage qualified applicants. Shorter periods between
elections increase the likelihood that a judge would face
an election challenge. Right now judicial salaries are
falling relative to salaries in other states. An
experienced, seasoned private sector attorney may have to
drop his or her income one half to two thirds to take a
judicial position. All of this discourages well-
qualified attorneys from applying for the bench.
MS. COLE said the court system believes that maintaining the
current system and the structural integrity of the justice system
should be paramount. She urged the committee not to move SJR 22
forward.
Number 2143
SENATOR THERRIAULT asked for a list of judges who came to the
judiciary from private practice or the public sector.
MS. COLE replied that list could probably be provided.
CHAIRMAN TAYLOR said that if a judge had a controversial case at
the end of his or her sixth year term they might still face a
contentious retention election. When it comes to decisional
accountability and political accountability, unfortunately, courts
politically decide issues. It is hoped that cases are decided on
legal grounds but this is not always the case.
MS. COLE said Chairman Taylor was correct, highly controversial
cases do arise close to the end of a retention period, but the
system needed to be balanced. The constitutional founders thought
long and hard about where the balance should be and they concluded
that the terms currently in place provided for some accountability.
The current system is not perfect but it is a good balance between
accountability and independence.
CHAIRMAN TAYLOR asked how accountability is achieved when the first
chance to vote on the retention of a supreme court justice is three
years at the earliest after appointment. "This is assuming that
the appointment coincided with the next two year cycle, it could be
as much as four and three quarter years before there was an
opportunity to vote on that justice. Then there is one other
opportunity, and during that period of time, a supreme court
justice would have served 23 to 25 years with an initial retention
election, one retention election in the middle, and then deciding
to withdraw rather than file for reelection in their 23rd or 25th
year on the bench."
MS. COLE responded that the first period had to be long enough so a
track record could be established, which would give the public time
to evaluate a judges performance. If there were an immediate
retention election, voters would be asked to make a decision on a
judge who possibly had not made a decision yet. She said a 10-year
retention is not at all unusual and is representative of other
states.
TAPE 01-14, SIDE B
SENATOR THERRIAULT said he felt the six and four year retention
terms suggested by HB 13 were too short for balance.
MR. BILL COTTON, Executive Director for the Alaska Judicial
Council, said the judicial council is a separate independent agency
in the judicial branch of government. The council is charged with
two primary responsibilities - 1) Investigating and screening
judicial applicants, and 2) Evaluating the performance of judges
and making information available to the voters.
MR. COTTON said there were a number of reasons the judicial council
was opposed to SJR 22. The council has opposed bills in the past
that made retention terms six years for supreme court justices and
four years for superior court judges, rather than four years for
all, which is the case this year. The first reason for opposition
to SJR 22 is that shortening retention terms would discourage
highly qualified applicants from applying for a job because the job
would be less stable. This particularly applies to private
practitioners who have stable practices with good incomes. The
second reason for oppositions is that the evaluation focus would be
taken off individual judges and put on a larger group of judges.
Last year over half of the judges were up for retention election,
with the judicial council having to evaluate a long list of people,
making it harder to focus on the few judges whose evaluation needed
to be focused on. This also makes it difficult for the voters to
be knowledgeable on each judge. The intent of SJR 22 is to put
more focus on individual judges but the actual practice may not do
that. The third reason for opposition is that SJR 22 would increase
costs for the judicial council's evaluation and for balloting. The
fourth reason for opposition is that shortening the retention terms
would change the balance between judicial accountability and
judicial independence. The Alaska Judicial Council does a more
thorough evaluation than any where in the country or world by
surveying police officers, jurors, protection workers, court
employees, and every attorney in the state - 10,000 Alaskans are
asked to rate the judiciary and give comments. The council holds
public hearings, receives information from the Court Watch, handles
salary warrants, preemptory challenges, and it looks at how often
appeals are overturned. Almost all of this information is put on
the Internet where anyone can access it.
MR. COTTON said the council emphasizes judicial accountability but
judicial independence is also very important. Judicial
independence is one of the principals this country was founded on
and the founding fathers wanted judges who would protect the rights
of citizens even if it were not what the government wanted. Judges
are needed who are smart and fair and who decide cases on the law
rather than on whose before them, judges, who to the best of their
ability uphold the constitutional rights of citizens even if their
decisions are not popular. The judicial council in its retention
evaluations is very concerned that judges do not decide cases based
on their own political views.
MR. COTTON read a quote from the constitutional convention by
Delegate Davis.
Now historically, judges were always appointed until some
time after the adoption of our Federal Constitution, and
our Federal Constitution included that procedure in
providing that judges are appointed and in fact, are
appointed for life. And, of course, the theory behind
appointing judges for life is that they are once
appointed, completely independent, and over the years we
have seen many times when a President attempted to what
we might call, "pack" the Supreme Court. The President
has appointed his man or his men with a particular idea
in mind, and when those judges were appointed, I think
invariably or at least almost all the time, the President
in question has been badly disappointed to find that his
man followed what he conceived to be the law and not the
President's wishes. The lifetime tenure of judges has
much to recommend it. On the other hand, the lifetime
tenure of judges has the possibility of being abused.
Any attorney who has practiced law has seen instances
where a judge appointed for a lifetime, after serving for
a length of time, becomes completely unresponsive to the
will of the people, refuses to change with the times and
the times do change. And for that reason, strict
appointment with a lifetime tenure, has its
disadvantages. With that in mind then, sometime shortly
after the adoption of the United States Constitution,
many of the states started electing their judges with the
idea that the judges would be more responsive to the
public will. And the pendulum, as somebody said a while
ago, swung clear over to the other side and we had very
nearly all our judges except our Federal judges being
elected by the people and for relatively short terms. I
grew up in the state of Idaho and we had elective judges.
Their terms, even the supreme court judge terms were only
four years. The judge ran every four years and
inevitably it got into politics. In order to attempt to
remedy that situation, the state of Idaho many years ago
adopted a nonpartisan judicial ballot where the judge
runs, not as a member of the party, but runs for the
office. However, he runs against some other person who
aspires to be a judge, and he runs every four years. The
result was that the judiciary was not and could not be
independent, depending on the whims of the time,
depending on the decisions a man might have made, he was
or was not retained, or depending on how popular his
opponent might be, completely irrespective of
qualifications. Now the elective system has much to
recommend it, but likewise, it has much against it. In
the creation and maintenance of an independent judiciary,
and I believe without qualification, I believe I could
say that all of us here want an independent judiciary, a
judiciary that will not be swayed by the public will at
any particular moment, a judiciary that will not be
subject to political pressure, a judiciary that will not
be subject to pressure from the executive branch of the
government. I moved to Alaska some 16 years ago and from
that time to this I have been operating under a
judiciary, which was appointive. However, appointed for
a very short term of four years, and I am willing to
state flatly in my opinion that system will not work.
MR. COTTON said the constitutional convention specifically voted
down, by a large majority, a proposal to reduce the tenure terms of
supreme court justices to six years and they also discussed four
year terms. Mr. Cotton urged the committee to discuss the issue
carefully.
MR. COTTON said that any system based on people would not be
perfect, there would be mistakes and limitations. But the council
feels the current systems is a good balance and he urged the
committee to not pass SJR 22.
Number 1968
CHAIRMAN TAYLOR said he takes great pride in Alaska's judiciary, he
thinks it is one of the finest in the United States but he also
finds it somewhat incredible that:
"while embroiled in the middle of a campaign in 1998, I
watched my superior court first make a determination that
campaign finance laws were unconstitutional. It took my
supreme court about three days to move on that one and
act. During which period of time there was a window, we
all remember that one, when you could actually go out and
solicit for different amounts of money, then that window
closed with the supreme's making a decision and
immediately following that, I watched other people file
suits that would have significant impact upon that
election if they were acted upon. You know something, it
took them about a year and one half to even find the time
for judges not to be on vacation, for judges to be
available, for judges not to grant continuances one after
another. And these very same people seem to have
absolutely no comprehension of what the current Alaska
Public Offices Commission and ethics requirements are on
people who volunteer to serve at a range today that is
somewheres beneath the poverty level. At least, I think
my family could certainly qualify today for Denali Kid
Care, I think the salary that I receive is at least
somewheres below the 200 percent of poverty level. At
the same time, there seems to be little appreciation or
contemplation of what the role is of the judiciary in
righting wrongs during the political campaign. Instead
the continued - oh, we'll put that one off - justice
delayed is justice denied. I have members of major
communities that have come to me that have cases
currently pending that were argued over three years ago
and they still haven't received an opinion out of the
supreme court. And that involves major contract
disputes, the city of Anchorage as a consequence, they've
had to come up with a working solution in between because
they don't have a yes or a no to their question. This is
costing them hundreds of thousands of dollars. They seem
to be frustrated at that, I share that frustration. I
know how it has affected the politics within this state
when this court has failed to act, yet chosen in the same
campaign to act expeditiously when they thought it was
important for them to act. I really have come back down
to the place where I really am at the opinion that maybe
it is high time that some of the folks in the ivory tower
found out what it's like to rub shoulders with the masses
a little more often. And if it's six years or four years
or whatever if that happens to hit unfortunately when a
hot case is around, that's part of the luck of the draw.
And do I want to see judges raising $2 million to go out
and do campaigns, no I really don't want that system but
maybe I want a judiciary a little more sensitized to
those of us who must comply with some of the laws and
their interpretations of some of these laws. Maybe they
ought to join that fray for a little while and get a true
appreciation of it, cause this would certainly do that.
They would get back to the table a little more quickly I
think. But that's just a comment on my part, that's a
level of frustration I have with the system. Whether
this would, in fact, help that or not that's, as Dennis
Miller would say, that's just my opinion and I could be
wrong.
SENATOR DONLEY said he shared the same concerns as Chairman Taylor
with the whole issue. He finds it incredible that the judicial
council recommended all the existing members of the supreme court
to be confirmed or retained this year when some of the judges have
had cases pending for over two years without a decision. He does
not understand how the judicial council, in good conscience, could
say those people were doing their job properly. He said the
constitution's mandate of informing the public and representing the
public interest is not being met. Senator Donley said the council
had ignored his request to comply with its own ethical standards
regarding the membership voting on issues, it ignored his request
to make available to the public the outstanding warrants questioned
by submerging the information on the web site so that people had to
know exactly where to look for the information. He does think
there should be a balance between judicial independence and
accountability but right now the judiciary leans totally toward
independence with no accountability. SJR 22 is logical and
consistent, especially with six years for the supreme court.
Senator Donley said the judicial council had also failed to hold
some judges accountable for injecting their own political beliefs
into the decision process. "All you have to do is juxtapose the
Best decision against the opinions that have been coming down
trying to utilize the powers of the executive branch in
appropriation, to see that they are entirely inconsistent with
their own internal decisions." He said the Best opinion was an
outrage, it was a very lousy piece of judicial work and the council
failed to hold them accountable for that work. If this is the
state of law in Alaska, then things coming out of the superior
courts cannot be reconciled regarding the right to privacy with the
Best opinion. The right to privacy and the Best opinion are
completely inconsistent and the judicial council failed to hold the
judiciary accountable for that inconsistency, which can only be
based on political belief.
MR. COTTON said the judicial council gathers more information on
all aspects of how judges do their work than anywhere else in the
United States. The judicial council presents a tremendous amount
of information to council members and the voters, and with regards
to the Best case, council members seriously considered all
information and concluded the Best case had not been based on a
judge's political whim. Mr. Cotton agreed that judicial delay is a
problem and the council has addressed this issue over the years.
The council has asked the supreme court for briefings on how it is
addressing delay problems, and the supreme court has now issued
time standards for the trial and appellate courts. Developing a
case management system that would give the council competent
information would also be a step forward and the council has
considered proposing that the salary warrant information time
period be shortened. The council is now considering how it can do
better case processing.
MR. COTTON emphasized that council members are from all sorts of
perspectives and have concluded that Alaska has a good system and
judges are doing a good job.
SENATOR THERRIAULT suggested that in order to be retained a judge
should be approved by 55 to 60 percent of the voters.
MR. COTTON felt that raising the level would assure that if there
were any controversy about a judge that judge would be out of
office, and he would not be in favor of that.
MR. BRUCE WEYHRAUCH, private practice attorney, president and
member of the Board of Governors for the Alaska Bar Association,
said he felt SJR 22 was important enough for him to speak on his
own behalf. He said judicial independence is critical to the
constitutional form of government. When the framers of Alaska's
constitution had the opportunity to review what other states were
doing, they adopted a constitution that struck a balance between
what other states had done with lifetime appointments and the
retention election process. As an attorney, Mr. Weyhrauch felt
that Alaska's judges were very good. In benchmark conferences and
open forums judges hear the public and this is something that needs
to continue, it helps address some of the public's concerns and the
"ivory tower issues." There will always be tension between the
legislature, the executive branch, and the judiciary and that is
the way the system was meant to be. Mr. Weyhrauch trusts the
judiciary system and he imparts that trust to his clients by saying
that judges are doing the best they can based on law and precedent
and despite a lot of political pressure, courts rule with
precedent. The principal decision a court makes should be based on
existing law so that the private sector can operate with a certain
amount of certainty. Mr. Weyhrauch said that if retention
elections were shortened, a person in the private sector would have
to get rid of his or her client base and business before becoming a
judge, and the shorter the retention process the less likely the
judiciary would be considered a livelihood option.
SENATOR DONLEY asked what percentage of judge's come from the
private sector.
MR. WEYHROCK said most come from public service but it is a "mixed
bag." He said many attorneys' general see the judiciary as a
career step.
Number 1143
SENATOR DONLEY said Mr. Weyhrauch's response would discount the
argument that people would not come to the judiciary because of a
reduction in income. He asked if income should measure a
candidate's viability to be a good judge.
MR. WEYHRAUCH said the majority of people interested in the
judiciary want to work in this area and have proven their ability
to look at the law and be impartial.
SENATOR DONLEY said consistency is wanted from the judiciary and a
public safe guard is needed to assure consistency and 10 year terms
do not enforce consistency. He asked if a six-year review would be
objectionable.
MR. WEYHRAUCH said there is a mechanism in the superior court for
consistency through appeal if it is felt there has been an
inconsistent result with precedent. In the supreme court the
mechanism exists for moving to reconsideration or for appealing to
an even higher court if there are constitutional grounds for an
appeal. He was concerned that a judge could be thrown out of
office because of a disagreement over a decision, when in their own
intellectual capacity and through their own analysis of the law and
precedent of the facts, they applied the law as best as they could.
SENATOR DONLEY said the delegates to the constitutional convention
determined that the existing retention terms were appropriate terms
of office but he wondered if the delegates had ever envisioned some
of the things the courts have done in a very activist creative
manner over the past several decades. He said the constitution
needed to be reexamined on a regular basis to see if it is really
working. He thought that if the delegates had envisioned the types
of decisions crossing the separation of powers they might have
reevaluated the terms.
Number 813
JUSTICE RABINOWITZ made the following comments:
Thank you very much for giving me the opportunity to meet
with you. I just came from Bartlett [Hospital] so that's
my excuse if I'm a little disjointed. I've been apprised
of what's on the agenda, the periodic evaluation of not
only the supreme court, the superior court judges, but by
legislation, and the court of appeals. Present terms are
ten, six, and eight for the court of appeals. Let me say
this, what we're dealing with is the constitution.
You've alluded to 1955, the founding fathers had so
called expert advise on the Article IV of the
constitution. I've fortunately devoted and had the
privilege of surviving retention elections very closely,
serving in the Alaska judiciary since 1960, and I'm still
serving in the capacity as a pro-tem or senior justice
and helping out at both levels and it's a great treat to
work at all levels of the court system. When I first
came on in 1960 and then was elevated because of Justice
Aaron's defeat by the bar association in the retention
election to the supreme court, that's how the vacancy
occurred. I became familiar with the workings of the
judicial council. This is a fundamental document that
we're talking about, this is our basic law. And
naturally in 1955 the founding fathers didn't know how
the judicial article was going to work. Well, you can
dismiss this as ego blowing but I think the Alaska system
has matured and it's an incredible tribute to the
flexibility that was built into Article IV - that Article
IV has functioned. I know you're upset with some
opinions but I've seen the growth of the judicial
council, I happened to be ex officio chair when we were
struggling with how to make the council work. The
council to this day has matured, where it is leading the
Missouri states in how to get an informed electorate and
how to get a vote on the performance of judges at these
various levels. Now this is a compromise, you all know
that, we don't have the federal system and lifetime
appointment, we've given the voters a say in the
performance of the judiciary. There is no other state,
and I really will defend this, that gives the voters as
much information as we do and as close an analysis as we
do on the performance of the various judges at the
various levels that have to stand periodically. Now I
assume you've heard the arguments as to why we shouldn't
shorten the opinion. One I think will send the wrong
signal to those 20 or so Missouri states that have the
plan - that there's something wrong with our plan. Is it
working? Do the voters get enough information? Why
change it? Is there a real need to change the
fundamental doctrine of our government because some of
the opinions don't sit well? You've mentioned
inconsistent opinions. My god, does the ordinary citizen
know what the supreme court has done over a ten year
period? No. Is the supreme court aware of what they've
done? Sure. We have the Doctrine of Stare Decisis and
that's a very powerful doctrine. And let me tell you, in
our internal debates, we're very very hesitant to
overrule decisions just on a whim of public opinion.
You're going to get bad opinions once-in-awhile, how can
you get uniformity when you have 60 judges and 60
different philosophies, 60 different backgrounds,
different factual contexts, eventually you'll get some
inconsistency and it's up to the supreme court to
straighten it out. But it's hard enough to get the
information to the ordinary voter and if you truncate
everyone in to one period, it's going to lead to a
laundry list that's going to make it meaningless in the
election pamphlet and the information from the judicial
council gets out to the voter. My plea with you is if
it's not [broken] don't change it. This is the lifeblood
of the Alaska government. This is an article that has
worked. I know you say, dismiss it, Rabinowitz has been
there too long, he's part of the system. But I've seen
the system mature. Article IV has worked brilliantly.
And of the 22 or 24-merit selections, merit retention
states, we seem to be guiding them in the field of
representative democracy. We're the one state that lead
the way in evaluation and getting information back to the
electorate. I don't think we should confuse it by adding
to the laundry list, adding to the costs and it might
discourage, might discourage the practitioner who says
every four years, I'm not going to do that and give up a
great practice. We need a balance between private
practitioners, public practitioners and I think we're
getting that.
What I said I would be proud of is the growth of the
judicial council, again the one thing I would urge is
this is the constitution that we're dealing with and I'd
be slow to change it if it's working or to recommend a
change. I don't see any real hard significant evidence
that the periodic evaluations we have now are failing to
do what we're attempting to do. I think given the broad
mandate, you should allow us to continue with the time
frames we have until it's shown it really is not
performing the function that we're trying to achieve.
But we've gone a long way since 1960 and Alaska is a
leader in this field and I wouldn't want to send the
wrong signals to the other Missouri states, I wouldn't
want to unduly complicate and dilute the system we have
now. That's my plea to you Mr. Chair and the committee.
JUSTICE RABINOWITZ said it had been exciting to see what the
council has done. He was chairman four times and during that time
there were intense discussions on how to make the constitution
work. He felt Alaska's constitution had been working well and that
it had been a brilliant success. Alaska has a corrupt free
judicial system, some judges miss the mark but most do not and the
low appeal rate confirms this, which is a tribute to the
scholarship of the sitting judges.
SENATOR DONLEY said he was concerned about the two and three year
court delays. He asked if this was a new phenomenon.
JUSTICE RABINOWITZ said when he was "chief" he proposed time
standards for the supreme court but he could never get them
adopted. Now for the first time, stringent internal standards have
been adopted to get the opinions out. "Your six month legislation,
we tried to abide by and most of the time when I was on the court
we adhered to the six month deadline. The trouble was if you got
your opinion out on a very complicated case, say I was assigned a
direct case, and you got it out within six months and someone
disagreed with it there was no internal hammer to make the other
justices to get out his concurs or her decent. And that's what
delayed the opinions. Now I understand there are one or two real
clinkers that are around there for three years now and they'd
better look at that. But for the most part, we do strive to meet
that six-month deadline and even beat it. We've got a fast
calendar now on 'MO'S and J's' and I think they're improving in
this area. But you've identified an Achilles' heel and that is
there haven't been stringent internal time standards. But they
have them for the first time now they adopted them. I'm looking
forward to good faith adherence to them."
TAPE 01-15, SIDE A
Number 001
SENATOR DONLEY asked why the voters guide did not have information
about how many times a judge had not complied with the warrant
requirement or about current delay.
JUSTICE RABINOWITZ said the judicial council should take up that
suggestion. He said this information had not been tracked, but it
would be another way to get judges, who are slow, to clean up his
or her act because they would not want this information to go
before the electorate. There is no reason this information could
not be collected and could be a recommendation.
Number 150
CHAIRMAN TAYLOR said the information had been compiled but it was
only accessible through the Internet and only accessible if a
person knew all the steps to take.
MR. LES GARA said he had practiced law in Alaska since 1988 and has
had the privilege of going through Alaska's constitutional history.
He hoped the legislature would not disrupt the balance that the 55
delegates to the constitutional convention came to without reading
through the debates first. The delegates spent the good part of a
year researching what every other state in the country had done to
try and insure impartiality and accountability of the judiciary.
Mr. Gara felt they struck a wonderful balance. One of the
delegates, Mr. George McLaughlin, said "the more you make a judge
run the more you threaten to pressure a judge to render decisions
that are 'politically correct.'" If judges were politicians they
would run every four years but they are not and that is why the
system of letting them run every six, eight, and ten years makes
sense. During the last election there were 20 judges on the
ballot, and Mr. McLaughlin heard many complaints about there being
too many people on the ballot at one time for an informed decision.
If judges were to run every four years there would be 40 judges on
the ballot at one time, making it very hard for voters to make
intelligent decisions.
MR. GARA said he felt that judicial delay should be addressed in
another bill and should not be included with retention terms.
MR. GARA noted that Alaska has been pointed out by other states as
a shining light in this area. He said Alaska's judiciary is the
most impartial and independent judiciary in the nation and the
constitutional system should not be altered.
SENATOR DONLEY moved to amend SJR 22, lines 11 and 12 to read:
every sixth [TENTH] year [, AND EACH SUPERIOR COURT
JUDGE, EVERY FOURTH YEAR].
SENATOR DONLEY said this amendment would be consistent with the
states of Arizona, Kansas, and Oklahoma.
CHAIRMAN TAYLOR asked if there was an objection to the amendment.
There being no objection, amendment 1 passed.
Number 851
SENATOR DONLEY said for the record:
I think in trying to seek a balance here, I understand
the argument that having longer terms can help reduce
political influence. At the same time, lack of
accountability can increase political influence too.
Right now, I think the balance teeter totters a little to
far to the lack of accountability. I think that over the
last 50 years the notion of how judges behave and act has
changed rather dramatically. We went through the years
of the Warren Court and the vision that, the sense or
understanding of the judicial branch that was present in
the early 1950's or the mid 50's, I think is quite
different than reality today. I think there are a lot
more political agendas on the part of our judiciary today
than we saw in the 50's. It stemmed really from the
activist courts of the 60's and lead us to where we are
today with a much more active judiciary, possibly with
the exception of our newer members of the slowly evolved
unto our United States Supreme Court, which have come
from more conservative presidents. So that I do think
there is a different situation today than was found in
the 50's as far as the general impression or
understanding of how the judiciary works or what the role
of a judge or justice in society is. I think to help
temper that political influence I think that bringing
these terms down will actually help make them less
political rather than more because of the shift in how
they generally operate compared to how they did 50 years
ago.
I appreciate the arguments that have been made, I think
they're influential and good credible arguments. At the
same time when you factor in the societal changes that
have occurred since the constitution was drafted and the
fact that many other states are functioning very well
with shorter terms that I think this is overall the best
public policy decision.
SENATOR ELLIS asked about the status of SB 161.
CHAIRMAN TAYLOR responded that it would be heard at the next
meeting.
SENATOR DONLEY moved CSSJR 22 from committee with individual
recommendations.
SENATOR ELLIS objected. He thought this was a premature action in
light of the testimony and given the fact that SB 161 was coming to
the committee. He asked to have CSSJR 22 considered in the context
of SB 161 since SB 161 would address some of the problems brought
up during this meeting.
SENATOR THERRIAULT said he would also like CSSJR 22 held because he
had requested information from Ms. Cole and he would like to review
it before passing the bill out of committee.
SENATOR DONLEY withdrew his motion to move CSSJR 22 from committee.
There being no further business to come before the committee,
CHAIRMAN TAYLOR adjourned the meeting at 3:34 p.m.
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