SJR 15-CONST. AM: APPOINTMENT OF JUDGES MR. MIKE PAULEY, staff aid to Senator Leman, stated there have been several legislative proposals over the last several years to reform Alaska's judiciary, and while they have varied in the particulars, all of the reform proposals have stemmed from the common premise that the Alaska judicial system is broken. The problem is that there are judges who are not interpreting the law, but actually writing the law. They are examining the laws of the constitution not on the basis of original intent or long standing legal tradition but based on personal bias. Many Alaskans have taken comfort in the fact that erroneous decisions can be overridden through the process of a constitutional amendment. However, that process was significantly undermined in the Bess v Ulmer decision in which the court prevented Alaskans from voting on a constitutional amendment and edited the language of another. MR. PAULEY said the amendment before the committee proposes modest changes to the judicial selection process. It expands the pool of talent from which the governor can make appointments to fill judicial vacancies. It will require legislative confirmation of judicial nominees, and it will provide for more frequent retention elections. MR. PAULEY commented that SJR 15 takes a small step towards restoring a system of checks and balances among the three branches of government. The need for this is reflected in a comment by the twelfth chief justice of the U.S. Supreme Court, Harlan Fiske Stone, who lived from 1872 to 1946. Justice Stone observed, "While unconstitutional exercise of power by the executive or legislative branches of the government is subject to judicial restraint, the only check on our own exercise of power is own sense of self restraint." CHAIRMAN TAYLOR commented that the CS only speaks to retention elections and not an expansion of the pool from which Mr. Pauley is speaking. Number 823 MR. PAULEY clarified he was speaking to the original bill because the committee had not adopted the CS. SENATOR DONLEY moved to adopt CSSJR 15, version 1-LS0596\G, Luckhaupt, dated 3/17/00, having the supreme court subject to retention elections every six years and the superior court subject to retention elections every four years. There being no objection, CSSJR 15am was adopted. SJR 15-CONST. AM: APPOINTMENT OF JUDGES MS. STEPHANIE COLE, Administrative Director for the Alaska Court System, said the retention system that is currently in place in Alaska is often cited as a national model--a model that balances judicial accountability against judicial independence preserving a judge's ability to make decisions impartially against the public's very important right to hold judges accountable. Judicial accountability is a concern to the legislature and also to the court. When talking about judicial accountability there are three types of accountability--political, decisional and behavioral. Political accountability is what is accomplished through a retention election, where the public can either approve or remove a judge. Decisional accountability is related to the issue of whether a judge, in a particular case, is correct or incorrect-- this type of accountability usually comes through the appellate process. Behavioral accountability is involved when dealing with judicial misconduct--primarily this is accomplished through the judicial discipline system. Shortening the retention period, that is proposed in the CS, creates a situation where the line between political accountability and decisional accountability start to blur, much to the detriment of the justice system. The period between judicial retention elections in Alaska is very middle of the road, they are in the middle of where most merit selections are. If the retention periods are shortened there will be a situation where judges are under increased pressure to rule in accord with the current political or public atmosphere. The whole system of government is set up to avoid this from happening. An important obligation of a judge is to preserve and protect the rights of the minority against which the will of the majority should never be able to prevail. By shortening retention periods, it is more likely that political campaigns will be waged against individual judges because of an unpopular decision. Tape 00-17, Side B MS. COLE said that deciding high profile cases is a difficult thing for judges to do at any time but it is especially difficult when a judge is facing an eminent retention election. The court feels it would be a backward step to increase the frequency of retention elections. More frequent campaigns against judges up for election is a predictable effect, and as campaigns are mounted against judges it can be expected that judges can and will mount counter campaigns. Judicial fund raising and campaigning is becoming a national issue in this country and it brings in the issue of a judges neutrality. Only a few cases become controversial, and judges need to be evaluated at regular paced intervals on how they are handling all of their cases not just the highly visible cases. MS. COLE commented that aside from judicial independence concerns, shortening the period between retention elections will have the effect of de-qualifying the qualified applicants seeking judicial positions. It will be harder to hold onto qualified people because their job security is less certain with more frequent retention elections. Ms. Cole read a quote by Edward Madiera, Chairman for the ABA's Commission on Separation of Powers and Judicial Independence: "Judicial independence is not for the protection of judges, but for the protection of the public." The judicial system feels that protecting the structural integrity of the system is paramount, and this resolution should not move forward. Number 2242 MR. BILL COTTON, Director for the Judicial Council, stated that the Judicial Council is an independent agency in the judicial branch of government. They participate in the selection of a judge and the evaluation of a judge who is up for retention. After this process, they make their recommendations and information known to the public. The Judicial Council's job is to try to assure as much excellence in the judicial branch and the judiciary as specifically as it can. This involves balancing judicial accountability and judicial independence. The Alaska Judicial Council does a more thorough evaluation of judges and makes more information public than any other state in the country. Alaska is a model for other states. The Judicial Council conducts surveys of police officers, attorneys, jurists, child protection workers, etc. This oversight tends to keep judges more responsive to the electorate. One of the basic principles this country was founded on is judicial independence--citizens constitutional rights need to be protected even if the powers that be would like a constitutional amendment forgotten. The Council opposes shortening the retention term because it believes the balance of judicial accountability will be upset. It will be harder to get applicants, and it is critical to get quality applicants. By decreasing the stability of the job, there will be less incentive for quality private practitioners to apply for these positions. Costs will be increased in terms of the state budget, and putting more judges on the ballot will decrease the focus that the council and the electorate will bring against individual judges. Superior court judges are up once every six years and the judicial council does a preliminary evaluation two years before that. There is also an attorney and peace officer survey done twice every six years. Number 2062 JUSTICE JAY RABINOWITZ commented that what the constitutional framers of the Alaska constitution intended has been identified and highlighted by his two colleagues. In his view, the Alaska constitution is a brilliant compromise between the federal system, the elected system and the merit system, and the system is not broken. Alaska's judicial system has been corruption free in terms of the judges performance of his or her judicial duty, this is a tribute to the Judicial Council's screening and in the care they take in the selection process. Now that the CS is in place, Judge Stewart feels many of his remarks may be redundant, but he does feel the system has worked well. JUSTICE RABINOWITZ commented that talented lawyers without political power and old family connections have been attracted to Alaska's judicial system. This is a philosophy of the west, if a person has talent they can apply for and obtain a judicial position--an individual can control their destiny to a large extent. This is the brilliance of Alaska's founding fathers, a compromise between an elected system and merit retention. The electoral electorate gets more information from the performance of judges than any other political entity in the country. An educated electorate is what is wanted and that is what Alaska is getting. JUSTICE RABINOWITZ noted there is a movement to truncate the retention period but initially a person in a judicial position has to run within three years, causing a speedy evaluation and analysis of the judicial officers performance. The stress on judges is warranted because it is a trade off between merit selection and accountability. He congratulated the committee on adopting the CS and encouraged the legislature to keep the system as it is. Number 1739 MR. LES GARA, an attorney in private practice in Anchorage, commented that he echoes what Judge Rabinowitz had to say, and before the legislature decides to disrupt the compromise that the constitutional convention made, he urges the committee to look at what the drafters of the Alaska constitution debated and why they decided to adopt the system they did. Mr. Gara quoted Mr. Ed Davis who was a delegate of the constitutional convention in 1955, "All of us here want an independent judiciary, a judiciary that will not be swayed by public will at any particular moment. A judiciary that will not be subject to any political pressure. We've taken the best means devised yet, to appoint and select qualified judges and to keep judges free from outside political pressures and to get rid of judges who are not able to properly do their job." The constitutional convention looked at all of the competing proposals of the time and they reached a compromise that has worked very well. Mr. Gara is happy the committee decided to drop the other provisions of SJR 15, but the remaining provisions also increase the amount of public pressure on the judiciary beyond what the delegates in 1955 agreed to and thought was appropriate. Mr. Gara addressed the statement made by Mr. Pauley of Senator Lemans office that, "what we have here is a system that is broken, that has judges bringing in their political biases and their personal biases--deciding cases on their personal biases." This is not what happens. One of decisions that spurred the bill prior to SJR 15 was a decision by Judge Michalski in Anchorage that lent some support to the idea that maybe homosexual marriage was legal under Alaska law. Judge Michalski decided the case based upon what he believed the law was, he did not decide the case based on his personal biases, he based the case on what he thought the law required. MR. GARA said when a political issue is being debated, there should be a politically biased decision--the legislature debates politics. In court a case should not be decided by a judge who bases the case on how the decision will look in the newspaper the next day. Judges need to consider the law and all of the facts, but by increasing the number of retention elections judges will be encouraged to issue sound bite decisions. Number 1477 MR. DAVID BUNDY, attorney and member of the Board of Governors for the Alaska Bar Association, stated the legislature should adopt the resolution that is currently proposed. There is no reason to shorten retention terms for members of the judiciary. The system has worked well and the impetus to change it is "wrongly headed." It is the nature of the advisory process that there will always be unhappy litigants and members of the public who object to decisions. This does not say that judges are not doing their job, it says that judges are doing their job because they are deciding difficult issues on which people have strong feelings. It is the duty of the judicial department to say what the law is. Subjecting judges to elections in which they will have to engage in fund raising is undesirable in the extreme because the only people who will contribute money to judicial candidates are lawyers. Judges need to be independent of organized interest groups and organized political groups.