Legislature(2019 - 2020)BELTZ 105 (TSBldg)
02/24/2020 01:30 PM Senate JUDICIARY
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 24, 2020
1:32 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Peter Micciche, Vice Chair
Senator Shelley Hughes
Senator Lora Reinbold
Senator Jesse Kiehl
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 55
"An Act relating to judges of the court of appeals; and
providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 55
SHORT TITLE: TEMP. APPOINTMENTS TO COURT OF APPEALS
SPONSOR(s): SENATOR(s) WILSON
02/13/19 (S) READ THE FIRST TIME - REFERRALS
02/13/19 (S) JUD
03/11/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/11/19 (S) Heard & Held
03/11/19 (S) MINUTE(JUD)
03/15/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/15/19 (S) Moved CSSB 55(JUD) Out of Committee
03/15/19 (S) MINUTE(JUD)
03/18/19 (S) JUD RPT CS 1DP 2NR 1AM SAME TITLE
03/18/19 (S) DP: HUGHES
03/18/19 (S) NR: MICCICHE, SHOWER
03/18/19 (S) AM: KIEHL
03/18/19 (S) FIN REFERRAL ADDED AFTER JUD
03/27/19 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/27/19 (S) Heard & Held
03/27/19 (S) MINUTE(FIN)
04/04/19 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/04/19 (S) Moved CSSB 55(FIN) Out of Committee
04/04/19 (S) MINUTE(FIN)
04/05/19 (S) FIN RPT CS 3DP 4NR SAME TITLE
04/05/19 (S) DP: VON IMHOF, HOFFMAN, WILSON
04/05/19 (S) NR: STEDMAN, MICCICHE, SHOWER, OLSON
02/19/20 (S) RETURNED TO JUD COMMITTEE UC
02/24/20 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
SENATOR DAVID WILSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Speaking as prime sponsor, presented the
sectional analysis for SB 55, version S.
NANCY MEADE
General Counsel
Office of the Administrative Director
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on SB
55.
ACTION NARRATIVE
1:32:12 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:32 p.m. Present at call to order
were Senators Kiehl, Reinbold, Hughes, Micciche and Chair
Coghill.
SB 55-TEMP. APPOINTMENTS TO COURT OF APPEALS
1:32:52 PM
CHAIR COGHILL announced the consideration of SENATE BILL NO. 55,
"An Act relating to judges of the court of appeals; and
providing for an effective date."
He explained that SB 55 was returned to this committee from the
Senate Rules Standing Committee for modification.
1:33:20 PM
SENATOR MICCICHE moved to adopt the committee substitute (CS)
for SB 55, work order 31-LS0485\S, Fisher, 2/20/20 as the
working document.
CHAIR COGHILL objected for an explanation.
1:34:02 PM
SENATOR DAVID WILSON, Alaska State Legislature, Juneau, Alaska,
speaking as prime sponsor of SB 55, said this bill would provide
a solution to the backlog of cases at the court of appeals. He
reviewed the sectional analysis of the committee substitute (CS)
for SB 55, version U to S. He said:
Section 1 would add a permanent fourth judge to the
Court of Appeals. This position would be filled by the
normal process as described in [AS 22.07.010].
Section 2 will change the effective date [to July 1,
2020.]
He said the previous version U would have established a
temporary two year appointment to the court of appeals. After
discussing this with the agency, and hearing Chief Justice
Bolger's and the Department of Law's comments about the number
of anticipated new cases, he felt this was a more appropriate
approach. The fourth judge will provide additional resources if
judges recuse themselves when conflicts of interest occur and to
hear cases and write opinions to help address the court's
backlog.
1:35:38 PM
SENATOR REINBOLD said changing the status of the fourth judge
from temporary to permanent raises a red flag to her. This bill
would also add four positions at a time of fiscal crisis.
Employees are often added to agencies to address work backlogs,
but these positions are never removed, so it grows government.
She expressed frustration.
CHAIR COGHILL recalled that the legislature anticipated
increased costs when it increased the penalties with passage of
[HB 49].
1:36:57 PM
SENATOR HUGHES observed that cases in the appellate court
currently experience delays. She said we know that settling
cases timely is much better for the victims but she wonders how
this would affect the delays going forward.
SENATOR WILSON deferred to the representative from the Alaska
Court System.
1:37:45 PM
SENATOR REINBOLD expressed concern about the cost and impacts to
citizens and businesses [with passage of Senate Bill 91]. It
adversely impacted the public and businesses and the court was
in the same situation then. She supported the repeal of that
bill because public safety is the state's most important
mandate. Passage of HB 49 reverts to pre-Senate Bill 91. She
said the court of appeals did not need a judge then so why does
the court need one now.
CHAIR COGHILL said the committee could review the fiscal note.
He said public testimony was previously closed, but he scheduled
public testimony for today.
1:39:41 PM
NANCY MEADE, General Counsel, Office of the Administrative
Director, Alaska Court System, Anchorage, Alaska, said she
understood the question to be how much more quickly will cases
be processed with the additional judge. She said it currently
takes three years from the time an appeal is filed until the
final disposition and that timeframe is not really acceptable to
the public. However, the delays are often attributable to
factors outside of the court's control. For example, delays
happen when the attorneys have not fully prepared the cases. She
said she cannot estimate how much faster it will be, but if half
of the delay is due to the court, adding a judge could cut it by
a quarter. With passage of SB 55, version S, each of the four
judges will handle 75 percent of the cases filed instead of
three judges handing all the cases. She anticipated that the
court will be able to speed up the process.
SENATOR HUGHES asked what the delay was pre-Senate Bill 91 and
if the delay has picked up.
MS. MEADE confirmed that the delay in final disposition of cases
has grown steadily since 2011. That was pre-Senate Bill 91 and
prior to passage of other criminal law changes but the exact
reason for the increase was difficult to pin down. She reported
that in 2011, the number of cases issued per judge per year was
50 and that increased to 90 decisions in 2018. Adding additional
law enforcement, higher case filings, and more difficult
decisions due to substantial changes in criminal law has
exacerbated the caseload. At the same time, several new judges
were appointed to the court of appeals, some from the public
defender's office. The court had a new judge appointed in 2012,
in 2013, and in 2018 or 2019. This means that these judges often
have conflicts of interest because they previously worked on the
cases appealed to the court. One appointed judge previously
worked in the Department of Law appellate division for criminal
cases, so that individual could not preside over some cases. She
acknowledged that the gap has grown since then.
1:43:28 PM
SENATOR REINBOLD expressed concern about the three year
timeframe for disposition of cases because it doesn't seem to
meet the constitutional standard for a speedy trial. She asked
why the cases take so long and if it is because the public
defenders are asking for delays. She recalled that some court of
appeals judges come from the public defender's office and
questioned why these judges are not being selected from
prosecutors. She expressed concern about supporting the bill if
empowers more public defense.
MS. MEADE responded that the basic reason for the three year lag
time was because everyone in the system is overworked, including
the prosecutors and public defenders who prepare the briefs. She
advised that the speedy trial rule applies to the district court
and superior court trials, but not to the court of appeals or
the Alaska Supreme Court. She reiterated that three years is not
a satisfactory timeframe for anyone, including the judges.
However, given their caseload, the judges cannot do the deep
analysis and consideration of cases any faster. Second, the
public defender and prosecutors cannot brief cases faster. She
said she does not have a breakout of who asks for additional
time, but it is often a stipulation between the two parties. In
any event, the attorneys need adequate time to fully brief their
cases. She said the decisions at the appellate level are much
more legally intense and require substantial analysis, so the
delays are issues for the whole criminal justice system. Third,
she said she did not mean to imply that most court of appeals
judges come from public defenders, but those who apply at the
court of appeals are attorneys interested in and have experience
in criminal law. The court of appeals only deals with criminal
cases. These judges can come from anywhere in the criminal
justice system. Generally, those with experience and background
come from prosecutors or public defenders.
1:47:23 PM
SENATOR KIEHL asked about caseloads for each of the three judges
serving on the court of appeals. He recalled earlier testimony
that each judge writes 50 opinions per year, which would total
150 opinions. He suggested that adding a fourth judge would
probably not get them to 50 cases per year, but probably closer
to 67 or 68 cases per year. He asked whether this was a
manageable caseload.
MS. MEADE answered that the court has requested funding for an
additional staff attorney to serve the court of appeals.
Currently, the court system has cobbled together funding for a
staff attorney and pro tem assistance for the court. Further,
the court system has asked for additional funding, but will drop
the request if this bill passes. They will maintain the request
for a staff attorney to handle the more routine petitions for
review or prepare cases for the judges' consideration. Finally,
the court anticipates that adding one judge would make its
caseload more manageable.
SENATOR KIEHL asked if adding the fourth judge is to keep up or
to catch up.
MS. MEADE responded both. Initially, the court will struggle,
she said. These three judges work six or seven days a week and
rarely take any vacations to avoid further delays in decisions.
By adding the forth judge, the court hopes to meet its backlog
within three years. At that point these judges would have a
manageable workload.
1:50:04 PM
SENATOR REINBOLD wondered if the court needs odd numbers to
serve to avoid split decisions.
MS. MEADE responded that the court would handle its cases the
way most appellate courts in the country operate. She explained
that these judges would serve on three judge panels. For
example, judges A,B, and C would handle January cases, judges
B,C, and D would handle February cases, and judges C,D, A would
handle March cases. Each judge would sit in on 75 percent of the
cases, thereby affording them more time to work on cases.
SENATOR REINBOLD asked where the court of appeals members
reside.
MS. MEADE answered that the court of appeals consists of Judges
Allard, Wollenberg, and Harbison. Judge Harbison resides in
Fairbanks and Judges Wollenberg and Allard live and sit in
Anchorage. These judges conduct much of their business by video
conference, she said. Judge Harbison's background is as a
superior court judge, and perhaps as a district court judge. She
did not recall her service prior to serving as a superior court
judge. She has served for a substantial amount of time in
Fairbanks. Judge Wollenberg was appointed in 2017 and she came
from public defender agency. In 2012, Governor Parnell appointed
Chief Judge Allard, and prior to her appointment, she served as
a staff attorney at the court of appeals.
1:52:43 PM
SENATOR MICCICHE said he supported the original bill but was
struggling [with the committee substitute]. Originally, SB 55
was for a temporary judge without staff. Version S would add
$300,000 plus for the judge and three additional staff
positions. He asked whether the department thought about trying
to limit this to one staff. He expressed concern with three
additional staff to serve the judge.
MS. MEADE explained that each judge serving on the court of
appeals has two law clerks and one judicial assistant. The new
judge would require the same support. The fiscal note for the
two year temporary judge was estimated at $275,000. The House
Finance subcommittee for the court system added $233,000 for the
court of appeals. This bill represents an increase of $60,000
above the pending funding. The additional funding would allow
the fourth judge to operate at the same level as the other
judges and avoid being handicapped by not having a law clerk to
do the legal research.
1:55:20 PM
SENATOR MICCICHE said he thought the increase is the same,
whether the funding is included in the budget or the bill. If
the legislature does not support either funding, the agency will
not receive an increase. He said he understood her concerns, but
things are tight.
MS. MEADE explained the court system's rationale for a longer
term permanent judge. As Chief Justice Bolger mentioned, the
trial courts have received a record number of felony cases,
perhaps 1,000 more cases. The more cases filed at the trial
level, the larger the pool of cases that can come before the
appellate courts. Similarly, the trial rate for felony cases
also increased last year, which adds to the potential number of
cases for appeal. Many cases could be dismissed or plea
bargained, but several factors lead to more appellate cases.
First, the trial rate has led to a larger number of cases for
the court. Second, the district attorneys have received more
oppositions in the last several years. Third, more law
enforcement activity also leads to more arrests and filings. She
provided a snapshot of currently pending superior court felony
cases from July 1, 2016 to July 1, 2020, which showed a 42
percent increase. She said the court system anticipates the
court of appeals' caseload will continue to grow. Anytime laws
change, the courts experience more novel issues, and more
unsettled areas of law. The transition between different laws
also leads to questions about which version of the law applies
to each case under consideration. She concluded that this
problem is not diminishing.
1:58:20 PM
SENATOR MICCICHE related his understanding that the court of
appeals only handles cases in which defendants were convicted.
He asked for the impacts for delays at the court of appeals.
MS. MEADE replied the court primarily considers the impact on
the public. When cases are reversed or remanded by the court of
appeals, it is problematic for prosecutors because they may need
to retry the cases and locating witnesses is problematic.
Victims are informed when their perpetrator has an ongoing
appeal and they cannot obtain closure until the case is
finished. This is the impetus for the court to work as quickly
as possible on its cases.
1:59:59 PM
SENATOR HUGHES asked if the court system requested additional
funds in the fiscal note it submitted for HB 49. She also asked
for the staffing levels when the court of appeals judges were
handling 50 cases per judge per year.
MS. MEADE answered that in 2011, the staffing levels were the
same as today with a caseload of 90 cases per judge per year.
She said she was almost certain the court did not ask for
additional resources in its fiscal note for HB 49.
2:00:57 PM
SENATOR REINBOLD asked what types of cases the court of appeals
handles. She related a scenario in which an eight year old was
strangled by a 50 year old man. The perpetrator received an 18
month sentence with 18 months suspended. She asked whether that
is the type of case that is appealed to the court of appeals.
MS. MEADE replied she was not familiar with that specific case.
She explained that the court of appeals hears cases related to
all criminal matters. These cases are either merit appeals, such
that the defendants were found guilty but say they were not; or
sentence appeals, in which defendants believe the penalties
imposed were excessive. The court also accepts other criminal
matters, including juvenile delinquency, appeals about bail,
petitions to revoke probation, and post-conviction relief. She
said the judges must sentence someone within the parameters set
by statute. Further, penalties depend on the type of crime, so
criminally negligent homicide would be considered at a different
level of crime than manslaughter or murder. She highlighted that
if the defendant was convicted of criminally negligent homicide,
the sentence would be lower than one might expect. Further, the
penalties imposed would also depend on whether the case went to
trial or if it was a plea bargain, because judges are limited in
what can be changed in plea bargains since the parties have
agreed to the terms.
2:04:13 PM
SENATOR REINBOLD asked what percentage of court of appeals cases
are appealed by the victims and what percentage are appealed by
the defendants.
MS. MEADE answered that in the vast majority of cases the
defendant is dissatisfied with what happened at the trial
courts. She said the victim is involved through the Department
of Law, who always enforces the criminal laws.
CHAIR COGHILL added that the defendant would be the person
appealing because that person receives the sentence.
SENATOR REINBOLD said the more she hears about this bill, the
less she likes it. She remarked that she is tired of the
defendant having all these constitutional rights. The victims
might be dead, so their constitutional rights are gone. The
defendant has continual rights to appeal. She said she is
inclined to step back if this bill will empower or embolden
defendants to appeal.
2:05:51 PM
CHAIR COGHILL agreed that victims struggle. He said quite often
victims do not get a remedy. However, the system allows people
constitutional rights, including the right to an appeal. He said
sometimes the courts or jury may get it wrong. He explained that
the constitutional duties are to protect the victims and protect
the rights of the accused and have a system that provides due
process.
2:06:33 PM
SENATOR HUGHES asked if victims have any recourse if they think
the sentence was too lenient or if prosecutors ever request a
harder sentence.
MS. MEADE replied the U.S. Constitution contains a double
jeopardy clause that prevents the defendant from being retried
for the same crime, which is why defendants initiate the vast
majority of appeals. She reminded the committee that most cases
are resolved through plea bargains and that the legislature
passed a bill last year that requires prosecutors to make a
reasonable effort to contact, notify, and consider victims'
views for any plea bargains. This process gives victims a voice,
she said.
2:07:51 PM
CHAIR COGHILL said satisfaction is hard to achieve because the
criminal justice system handles very difficult issues. He
emphasized the importance of having a system that is balanced in
law so the appellate process is important. Fortunately, it is a
good system and unfortunately it is an overworked system. He
offered his support for SB 55, version S. He summarized that it
will provide a fourth judge for the court of appeals with three
supporting staff consisting of two law clerks and a judicial
officer.
2:08:52 PM
SENATOR MICCICHE commented a lot of cases are coming back due to
DNA issues. He asked if the court of appeals would hear the case
of someone who was serving time, but DNA evidence surfaces that
could clear the person. He further asked if the court would hear
the case if it was 20 years after the original case.
MS. MEADE explained that the time to appeal trial court
decisions is limited by rule. She suggested that the appeal
timeframe was 30 or 60 days, but not years. She suggested that
the remedy would be a motion for post-conviction relief. That
goes to the trial courts but the defendant could appeal the
trial court decision to the court of appeals, she said. Those
cases are related to an underlying felony or misdemeanor
offense.
CHAIR COGHILL commented that DNA affords relief to some victims
on cold cases.
2:10:33 PM
CHAIR COGHILL opened public testimony and after first
determining no one wished to testify, closed public testimony on
SB 55.
2:11:02 PM
SENATOR MICCICHE moved to report the committee substitute for SB
55, work order 31-LS0485\S, version S, from committee with
individual recommendations and the attached fiscal note(s).
2:11:19 PM
SENATOR REINBOLD objected to state that she would not support SB
55.
CHAIR COGHILL asked if she maintained her objection.
SENATOR REINBOLD answered yes.
2:11:25 PM
SENATOR HUGHES said she was uncomfortable moving the bill so
quickly. She expressed interest in hearing if the judicial
system had any provision in the fiscal note for HB 49. She asked
if it was necessary to move the bill today.
CHAIR COGHILL answered no. He said the bill will be returned to
the Senate Rules Committee. He further said he did not think the
fiscal note would change any provisions in this bill. He
acknowledged that it would be good to review the fiscal note
prior to the bill coming to the Senate floor for a vote.
SENATOR KIEHL advised members that he reviewed the fiscal notes
for HB 49, which passed the legislature last session. None of
the judicial branch fiscal notes added any resources to the
appellate courts, he said. Rather, the funding for HB 49 was
allocated to the trial courts. In response to Chair Coghill, he
identified the judicial branch fiscal note for HB 49 as number
38 [dated 5/17/19].
2:12:59 PM
SENATOR HUGHES asked the sponsor to speak to the
administration's support for the bill.
2:13:16 PM
At-ease.
2:16:52 PM
CHAIR COGHILL reconvened the meeting.
2:17:03 PM
MS. MEADE advised members that prosecutors can appeal a sentence
imposed after a trial and the court of appeals can disprove the
sentence as being too lenient. She said she may have misspoken
by stating that 100 percent of the cases are appealed by the
defense. That is not the case.
2:17:35 PM
SENATOR REINBOLD recalled she said defendants make the vast
majority of appeals to the court of appeals. She asked if that
was true.
MS. MEADE answered that she was unsure of the exact numbers, but
the majority of appeals are made by defendants.
SENATOR REINBOLD repeated the answer and asked if the vast
majority of the cases are settled by plea bargains. If they are,
those cases would not go to the court of appeals. She said she
struggles with the need for this bill and cannot support it
during a time of fiscal crises and when Alaska has the highest
rates crime in the nation or in the world. She said she can't
continue to ignore the victims. She wants Alaska to invest in
victim-centered policies.
MS. MEADE said from the Court's perspective, the victims suffer
as long as the cases are not resolved. She explained that adding
a judge to the court of appeals will assist victims and help
assuage the problem by reducing the time period for appeals. She
said that is the main impetus for the Alaska Court System's
support of this bill.
2:19:20 PM
SENATOR REINBOLD offered her view that if the Court is getting
more work done, it actually empowers the defendants. She said
she could see this from multiple angles. However, she will be a
no vote.
2:19:44 PM
CHAIR COGHILL said he would hold SB 55 in committee.
CHAIR COGHILL reviewed the upcoming committee announcements. He
commented that it had been his intention to move the bill, but
several questions still need to be addressed.
2:20:01 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 2:20 p.m.
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