SB 14-SELECTION AND REVIEW OF JUDGES    1:38:24 PM CHAIR REINBOLD announced the consideration of SENATE BILL NO. 14, "An Act relating to the selection and retention of judicial officers for the court of appeals and the district court and of magistrates; relating to the duties of the judicial council; relating to the duties of the Commission on Judicial Conduct; and relating to retention or rejection of a judicial officer." 1:38:44 PM CHAIR REINBOLD recognized Senator Holland. 1:39:47 PM SCOTT OGAN, Staff, Senator Mike Shower, Alaska State Legislature, Juneau, Alaska, introduced himself. 1:40:00 PM SENATOR SHOWER introduced SB 14. He read the sponsor statement, as follows [Original punctuation provided]: Alaska's constitution is clear, Superior Court Judges and Supreme Court Justices must be vetted by the Judicial Council and the Governor can only select from a list of two or more submitted by the Judicial Council. However, the Constitution also left the door open for legislative discretion with jurisdictional issues with how Appellate Court and magistrates are selected and how all judges are screened. Currently, the Judicial Council prescribes 100% of the screening criteria. One section of this bill gives direction to the Judicial Council on that subject. Currently, Magistrates serve at the discretion of the Chief Justice, and Appellate Court Judges are nominated in a statute defined process that mirrors the Constitutional Judicial Council process. The Judicial Council is structured to give a permanent majority of Bar members the control of who gets to be a judge or Justice. Additionally, judge's names are subject to a Bar member-controlled prescreening process. Bar members are appointed internally by the Bar with no legislative or administrative oversight. Non-Bar members (the public) are in a minority position to influence final decisions. 1:41:26 PM SENATOR SHOWER remarked that this essentially meant that three attorneys and three non-attorneys, with the Alaska Supreme Court justice acting as tie-breaker, could make the final decision or basically that four attorneys make the final decisions on judges. 1:41:43 PM SENATOR SHOWER continued to read the sponsor statement: Senate Bill 14 strikes more of a balance in letting the governor and the people have a small say in who sits in judgment on the bench when they appear before them. It allows the governor to appoint and the legislature to confirm who fills magistrates and appellate judges. It still allows the JC to recommend candidates, but the governor does not have to appoint them. The governor can appoint his own appellate judges. 1:42:05 PM This bill also takes the judicial retention rating process from the Judicial Council, and gives it to the Commission on Judicial Conduct, as the Judicial Council ratings tend to be noncritical. The CJC receives complaints about judges, and they are the best qualified to rate them. With judicial elections deemed "nonpartisan" virtually no political effort or mechanism to mount such effort, is ever directed toward educating the public about activist judges during their retention election. A conflict of interest may arise with evaluating attorneys because when lawyers on the Council rates a judge with a critical rating, will that lawyer ever get a fair hearing before that judge? It has to be a factor in the backs of their minds. The sponsor respectfully suggests that lawyers may have a conflict of interest when they rate judges for retention. The Sponsor also very respectfully suggests that a better group to write reviews of a judge's performance would be the Commission on Judicial Conduct. They are the people that field complaints about judges. Critics of this legislation will say it politicizes the process. But with recent rulings affecting political races, that ignore or nullify clear legislative intent, there is little doubt the justice process is politicized and needs some balance from the representatives and governors that the people elect. 1:43:42 PM At ease 1:44:15 PM CHAIR REINBOLD reconvened the meeting. She said she was having a hard time hearing the sponsor's testimony. She said people must socially distance themselves in committee, but she will allow people to remove their masks. SENATOR SHOWER agreed to remove his mask. He asked if he should repeat his testimony, but no one answered. 1:45:06 PM MR. OGAN read the sectional analysis for SB 14. [Original punctuation provided: Section 1. Amends AS 15.15.030(10) by adding magistrates to the nonpartisan ballot designed for each judicial district in which a justice, judge, or magistrate is seeking retention. Section 2. Amends AS 15.35.100 by making magistrates subject to retention election. Section 3. Amends AS 15.35.110 by requiring a magistrate seeking retention to file a declaration of candidacy for retention. Section 4. Amends AS 15.35.120 by requiring the director of elections to place the name of a magistrate seeking retention to pay a $30 filing fee. Section 5. Amends AS 15.35.130 by requiring the director of elections to place the name of a magistrate who has properly filed a declaration of candidacy on the ballot in the judicial district designated in the declaration of candidacy. 1:46:14 PM Section 6. Amends AS 15.35.135 by permitting a magistrate to withdraw from candidacy for retention in writing unless the notice of withdrawal is received less than 64 days before the date of the election. Section 7. Amends AS 15.58.050 by requiring that the Commission on Judicial Conduct, rather than the Judicial Council, file a statement with the lieutenant governor that includes information about each supreme court justice, court of appeals judge, superior court judge, district court judge, and magistrate who will be subject to a retention election. 1:47:01 PM Section 8. Amends AS 15.58.060(a) by requiring magistrate judges seeking retention to pay a $150 fee to the lieutenant governor at the time of filing under AS 15.58. Sections 9 and 10. Amends AS 15.58.060(c) and AS 22.05.100 by replacing "Judicial Council" with "Commission on Judicial Conduct." Section 11. Amends AS 22.07.060 by authorizing the Commission on Judicial Conduct, rather than the Judicial Council, to conduct an evaluation and provide information and a recommendation regarding a court of appeals judge subject to retention election. Adds magistrate to the positions a judge may not be appointed to for four years following rejection of the judge's candidacy. 1:48:12 PM MR. OGAN continued: Section 12. Amends AS 22.07.070(b) by allowing the Judicial Council to submit the name of a judicial candidate to the governor for consideration for the court of appeals only if the council determines that the candidate understands and is committed to strict constitutional interpretation of statutes and regulations and adhering to legislative intent. Amends AS 22.07.070(a) by allowing the governor to appoint a person who was not nominated by the council, but is qualified under AS 22.07.040, requiring confirmation by a majority of the members of the legislature meeting in joint session, and making an appointment effective upon the later of either legislative confirmation or actual vacancy. 1:49:11 PM Section 13. Amends AS 22.10.150 by authorizing the Commission on Judicial Conduct, rather than the Judicial Council, to conduct an evaluation and provide information and a recommendation regarding a superior court judge subject to retention election. Section 14. Amends AS 22.15.170(a) by allowing the governor to appoint a person to a district court or magistrate vacancy who was not nominated by the Judicial Council, but is qualified under AS 22.15.160, requiring confirmation by a majority of the members of the legislature meeting in joint session, and making an appointment effective upon the later of either legislature confirmation or actual vacancy. 1:50:09 PM MR. OGAN continued: Section 15. Amends AS 22.15.170(e) by allowing the Judicial Council to submit the name of a judicial candidate to the governor for a district court or magistrate position only if the council determines the judicial candidate understands and is committed to strict constitutional interpretation of statutes and regulations and adhering to legislative intent. Section 16. Amends AS 22.15.195 by authorizing the Commission on Judicial Conduct, rather than the Judicial Council, to conduct an evaluation and provide information and a recommendation regarding district court and magistrate judges subject to retention election. 1:50:55 PM Section 17. Amends AS 22.15.205 to allow the impeachment of magistrates. Section 18. Amends AS 22.30.011(a) to allow an inquiry into the potential misconduct of a magistrate. Section 19. Amends AS 22.30.011(b) to allow the Commission on Judicial Conduct to exonerate or admonish a magistrate or recommend counseling and to hold a disciplinary hearing to consider potential misconduct of a magistrate. Section 20. Amends AS 22.30.011(c) to entitle a magistrate to counsel at a hearing before the Commission on Judicial Conduct. Section 21. Amends AS 22.30.011(d) to allow for the exoneration or discipline of a magistrate after a hearing described in AS 22.30.011(b). 1:52:02 PM Section 22. Amends AS 22.30.011(g) to allow an exonerated magistrate to request that the Commission on Judicial Conduct's proceedings and report be made public. Section 23. Amends AS 22.30.070 to provide for the disqualification, suspension, removal, retirement, and censure of a magistrate. 1:52:32 PM MR. OGAN continued: Section 24. Amends AS 22.35 by adding a new section prohibiting the use of state funds to support or oppose the retention or rejection of a judicial officer in an election under AS 15. This section does not apply to the duties of the Commission on Judicial Conduct under AS 15.58.050, AS 22.05.100, AS 22.07.060, AS 22.10.150, and AS 22.15.195. Section 25. Repeals AS 22.15.170(c), AS 22.15.170(d), and AS 22.30.011(h). 1:54:10 PM SENATOR MYERS referred to Section 25. He asked why the bill would repeal AS 22.30.011(h). He said this provision creates the reports for judicial conduct, which should be retained. SENATOR SHOWER deferred to his staff to respond to any technical questions. 1:55:24 PM MR. OGAN offered to confer with the Legislative Legal Services attorney and report back to the committee. 1:56:45 PM SENATOR HUGHES related that many of her constituents have raised concerns. She said one could argue that this will politicize the process, but she does not see it that way. The process has already been somewhat politicized. She asked about moving the duties from the Alaska Judicial Council to the Alaska Judicial Conduct Commission (AJCC). She indicated that the AJCC is comprised of three justices or judges, three attorneys, and three members of the public. This means the AJCC consists of six attorneys and three public members, she said. She asked for the composition of the AJC. SENATOR SHOWER said the AJC is composed of six members, with three selected by the Alaska Bar Association and three non- attorney members. In the case of a tie, the Supreme Court chief justice would cast the tie-breaking vote. SENATOR HUGHES pointed out that SB 14 would effectively change the decision-making ability to six attorneys and three public members. She asked whether the AJCC would have information on every judicial appointee or judge coming before them. She stated that the AJCC considers complaints against judges. She asked whether the sponsor would be open to some type of combination of duties, such as both the commission and council would have duties. SENATOR SHOWER answered that the bill addresses this. The AJC would still provide information. AJCC consists of nine members, but the bill does not restrict members to select the names of potential judges. Under the bill, the AJC would make recommendations based on the [nominee's or judge's] record rather than the [Alaska Bar Association] making the decisions. Finally, the legislature, consisting of elected officials, would have the final say. He offered his view that the current process is already politicized, but SB 14 would provide more balance, providing public input. 2:02:43 PM MR. OGAN said he could not recall AJC providing any critical views on [prospective judges] and judges. He suggested that the current system creates a bit of a conflict. Since the AJCC makes determinations on complaints about judges, it makes more sense for the AJC to evaluate and recommend judges. He said he is not opposed to Senator Hughes's suggestion to create a hybrid. He stated that this bill would not change the selection structure for Supreme Court justices or superior court judges. This bill relates to selection and retention for the court of appeals, district court, and magistrates. 2:05:34 PM SENATOR SHOWER advised members that he is open to amendments to improve the bill. 2:06:30 PM SENATOR KIEHL said he looks forward to hearing from the Alaska Court System at a later date. Although the sponsor's staff could not recall the AJC ever issuing any negative reviews on judges, at least three instances occurred in recent years in the communities of Bethel, Anchorage, and Kenai. He stated that SB 14 would treat some courts differently than others. He questioned why the bill would set up a bifurcated system and not include all judges. SENATOR SHOWER argued that the current system is politicized and gave an example. He then explained that to address all courts would require changing the Alaska Constitution, which would be difficult. He favored having the legislature exercise its constitutional authority by appointing judges to the lower courts. He said he will continue to work on a constitutional amendment, but it may only have a slim chance of passing. 2:09:13 PM MR. OGAN opined that the constitutional founders were clear in establishing the Superior Court and ASC appointment process. The founders gave future legislatures discretion since changes might be necessary as the state grew. The bill would establish a bifurcated system because of the prescriptive constitutional sideboards. He offered his belief that clear constitutional authority allows the legislature to establish the court jurisdictions as it sees fit. He characterized SB 14 as providing a better balance in the selection and retention process. He said the appellate judges handle criminal cases although [the sponsor] is considering an amendment to include civil cases. When a person loses his/her court case, the person can appeal it to the ASC, but that appeal will be limited to issues in which the lower court erred in interpreting a statute or constitutional provision. However, the court cannot consider additional factual information that may arise. Adding civil cases would allow a second opinion, which is closer to how the federal court system operates. At the Department of Natural Resources (DNR), where he previously worked, he often appeared in federal district court and appeals would go to two levels of appeals court, a 3-member panel or an 11-member circuit court, prior to an appeal to the US Supreme Court. This bill moves more toward that federal process. The bill would also ask the AJC to evaluate whether a judge could consider strict interpretation of statutes, regulations, and the Constitution of the State of Alaska. He reiterated that it would provide for a more balanced approach. 2:14:04 PM At ease 2:15:24 PM CHAIR REINBOLD reconvened the meeting. 2:15:39 PM SENATOR KIEHL disagreed with the sponsor that the process is politicized. He asked for further clarification of the terms, "a strict constitutional interpretation and "adhering to legislative intent." He related his understanding that those terms tend to be judicial philosophies in conflict. 2:16:56 PM CHAIR REINBOLD remarked that legislative bills are not supposed to conflict with the constitution, so she did not see any issue with the terms. 2:17:09 PM SENATOR SHOWER continued to press his point that the process is politicized and how it happened. Still, he acknowledged it is a matter of interpretation. He asked his staff to speak to the terms listed in the bill. MR. OGAN said the language regarding strict interpretation is in the bill because of some recent cases. The legislature does not currently give any direction to the AJC. SENATOR SHOWER offered to provide additional information on the terms at a later date since time is limited today. CHAIR REINBOLD held SB 14 in committee.