SB 31-SELECTION AND REVIEW OF JUDGES  4:30:06 PM CHAIR KAWASAKI reconvened the meeting and announced the consideration of SENATE BILL NO. 31 "An Act relating to the selection, retention, and rejection of judicial officers for the court of appeals and the district court and of magistrates; relating to the duties of the judicial council; and relating to the duties of the Commission on Judicial Conduct." He advised that testimony on SB 31 could be submitted to senate.state.affairs@leg.gov. He invited the sponsor to introduce the bill. 4:31:18 PM SENATOR MIKE SHOWER, District O, Alaska State Legislature, Juneau, Alaska sponsor of SB 31, advised that a committee substitute was forthcoming. He introduced the bill by reading the sponsor statement. [Original punctuation provided.] Alaska's constitution is clear, there are two tiers of judges. 1. Constitutional Judges: Superior Court Judges and Supreme Court Justices must be vetted by the Judicial Council (Council) and the Governor can only select from a list of two or more names submitted by the Council. SB 31 holds constitutional judges harmless. The operating authority of this provision is: Art IV Sec 5. "The Governor shall fill any vacancy in an office of the supreme court justice or superior court judge by appointing one of two or more persons nominated by the Judicial Council. 2. Statutory Judges: District, Appellate and Magistrates. Existing statute currently follows the Judicial Council nomination process. However, judicial candidates are subject to the legislature's discretion on how they are selected, and appointed and whether they are confirmed by the legislature. SB 31 exercises the legislature's delegated constitutional authority to set policy on how these statutory judges are selected to serve on the bench. The operating authority of the provision is: Art IV Sec 4. "Judges of other courts shall be selected in a manner, for terms, and with qualifications as prescribed by law." Currently, magistrates serve at the pleasure of the presiding superior court judge. Appellate and District Court Judges are nominated in a statute defined process that mirrors the Art IV Sec 5 Judicial Council process. The Council is structured to give a majority of the Alaska Bar (Bar) members the control of who gets to be a judge or justice. The deciding vote in a tie is given to the ex-officio seventh member, the Chief Justice. The Chief Justice has voted 79 times to break ties since 1984. Additionally, all judicial candidate names are subject to a Bar member-controlled prescreening process. Bar members of the Council are appointed internally by the Bar with no legislative confirmation or administrative oversight. Virtually all the Judiciary Branch is, "beyond the reach of democratic controls." There is an old saying, "power corrupts, and absolute power corrupts absolutely." While the bill sponsor is not expressly alleging corruption within the Judiciary, it is undeniable that the Bar exercises tremendous power over the judiciary. In a legislative briefing to a joint session of the legislature, Chief Justice Winfrey recently decried the legislature meddling in the Judiciary, claiming there are no politics in the Judiciary. If you disagree, he further implied that you are just a sore loser. He was adamant that the people's representatives should not influence the selections of judges. 4:34:58 PM SENATOR CLAMAN called a point of order saying that the foregoing was a poor characterization of the Chief Justices' comments, and it was inappropriately disrespectful. CHAIR SHOWER countered and then continued to read the sponsor statement. However, the constitutional framers that sought to protect upper benches from political meddling, against their own convention consultant's warnings, yet left the lower benches up to legislative control. Up to this point, the legislature ceded 100% control, and it mirrors the "constitutional" Alaska Bar selection controls. The Alaska Constitutional Convention Judiciary Committee Consultants wrote, as reported by Vic Fisher in his book, "Alaska's Constitutional Convention." - No state constitution has ever gone this far in placing one of the three branches of the government beyond the reach of democratic controls. We feel that in its desire to preserve the integrity of the courts, the convention has gone farther than is necessary or safe (emphasis added) in putting them in the hands of a private professional group, however, public-spirited its members may be. Senate Bill 31 strikes the "safe" constitutional balance envisioned by the framers by giving the governor and the people's representatives an appropriate say in who sits on certain statutory benches. It allows the governor to appoint and the legislature to confirm who fills magistrate, district court and appellate judges. It still allows the Council to screen and recommend all candidates, but the governor is not mandated to appoint only from the Bar submitted list. The governor can nominate and appoint Judicial Council screened magistrate, district, and appellate judges. Even then, the final "safety" cross check would be an up or down vote on each appointment to the lower courts by the legislature. The sponsor respectfully suggests that lawyers may have a conflict of interest when they rate judges for retention. They all may appear before those judges and are all sworn officers of the court. Imagine if only legislators could nominate who could run for office! Do they gain favor with judges they helped get on the bench? Do they lose favor with those they rate poorly, or vote against? The Constitution is clear, all power is derived from the people, not the Bar or any other private or trade organization. It is well past time the "people's" branch, the legislature, take back its constitutional derived authority in selection of lower judicial appointments. SB 31 exercises the authority expressly granted in the constitution, for the legislature and governor to prescribe how Magistrates, District Court judges and Appellant Court judges are nominated and confirmed. Thus, awakening the constitutional framers long dormant approach to judicial selections. 4:37:30 PM CHAIR KAWASAKI asked the sponsor to point out the differences between this bill and the forthcoming CS. CHAIR SHOWER said the bottom line is that magistrates will be removed from the bill, except for the accountability section. 4:38:43 PM SENATOR CLAMAN noted the reference to 79 times that the Chief Justice voted to break a tie when the council was considering whether or not to advance a name to the governor for nomination to a judgeship. He asked how many times names were advanced and the Chief Justice did not participate. CHAIR SHOWER said he didn't know. SENATOR CLAMAN asked if it was hundreds or thousands. CHAIR SHOWER guessed that at best it would be a few hundred in the history of the state. 4:40:07 PM SENATOR CLAMAN asked if he was saying that the council voted to advance a name to the governor just a few hundred times without the Chief Justice having to cast a vote to break the tie. CHAIR SHOWER said he thought that was correct. He acknowledged that he didn't spend time researching that aspect of the question. SENATOR CLAMAN asked how often in those 79 times did the Chief Justice vote in favor of advancing the name and how many time did the Chief Justice vote to not advance the name. CHAIR SHOWER replied he didn't ask for that data; he only wanted to show that it does happen. He didn't want it to become a political issue. 4:44:56 PM SENATOR CLAMAN said his quick review of the material in the bill packet indicated that a substantial majority of the time the Chief Justice voted to advance the name to the governor for consideration. He disputed the notion that it was a political process, and expressed interest in the sponsor's office doing an accounting so the committee knows how often the Chief Justice voted against advancing a name. CHAIR SHOWER said he'd try to get the data. He directed attention to a document in the bill packets that describes how Alaska judges currently are selected, with the exception of magistrates. SB 31 suggests using the same attorney pool, the Judicial Council still vets and screens the candidates, and the governor would make the selection. If the governor rejects a selection, it triggers a second round. In the second round the governor would choose two names and the judicial council would choose up to four more names, the governor would choose from those names, and the legislature would vote to confirm the judges. This would apply to district and appellate courts; this would apply to 24 judges. SENATOR CLAMAN asked if he agreed that all judges currently go through the same process for appointment. SENATOR SHOWER said yes. SENATOR CLAMAN opined that if some judges were to go through a processes that is not pursuant to the constitution, they would be more likely to approach things with a different degree of rigor or differently than judges who were appointed pursuant to the constitutional process. This would invite more appellate litigation and more disagreement amongst the district court and the courts of appeals with the superior court and the Supreme Court. He said it seems that the proposed process would not be as good as the current process. 4:46:27 PM CHAIR SHOWER maintained that he was suggesting what the constitutional founders said to do. The judges will follow the rules the Supreme Court sets. He didn't see an issue. SENATOR CLAMAN asked if he could point to an example in which a magistrate was found to owe a duty of loyalty to a superior court judge. SENATOR SHOWER said that's unprovable, but it's a reasonable assumption. 4:48:45 PM SENATOR CLAMAN asked if the Commission on Judicial Conduct looks at the conduct of judges and magistrates and takes action only if they are doing something inappropriate. CHAIR SHOWER offered his understanding that the commission would investigate a complaint that was filed. CHAIR KAWASAKI advised that testimony could be submitted to senate.state.affairs@akleg.gov. 4:50:40 PM CHAIR KAWASAKI opened public and invited testimony on SB 31. 4:50:48 PM BETTY JO MOORE, representing self, Anchorage, Alaska, provided invited testimony in support of SB 31. She stated that Alaska needs judicial reform because not all judges follow the law, which violates citizens' constitutional rights. She said the selection of judges should never be controlled by a political party or the Alaska Bar. Alaska needs judges who protect Alaskans against injustices. She quoted a statement from a group of justices who acknowledged that too often African Americans, Alaska Natives, and other people of color are not treated with dignity and respect and that as judicial officers they were committed to do more to change this reality. MS. MOORE stated that another group of people who aren't treated with the respect they deserve are the people without the education, financial means, or necessary political connections to protect their constitutional rights to protect their children from the states foster care system. She questioned whether the people in jail for crimes they didn't commit actually received a fair trial. She mentioned a survey mailed several weeks ago to all Senators and Representatives asking about the Kenai Grand Jury investigation and judicial corruption. Ms. Moore recounted the letters she had written highlighting the wrongful and inaccurate facts in an order that a superior court judge wrote, the imbalance in the judicial system, and judicial violations of constitutional rights. She charged that there was documented proof of corruption among Alaskan judges and that they needed to be impeached. She emphasized the need to stop judicial corruption and that the remedy was for SB 31 to become law and a constitutional convention to be called. 4:55:14 PM SENATOR WIELECHOWSKI asked what percent of Alaskan judges she believed were corrupt. MS. MOORE answered that she wouldn't give a percentage until the documentation is released, but one judicial injustice is one too many. SENATOR WIELECHOWSKI asked if she agreed that the process to remove corrupt judges was through the retention vote. MR. MOORE responded that the retention vote process doesn't work. 4:57:42 PM LOREN LEMAN, former lieutenant governor and former legislator, Anchorage, Alaska, provided invited testimony in support of SB 31. He relayed a story from when he was a freshman legislator. A member of the opposite party said Alaska might have a republican governor someday but his party would always have the courts because of the way judges are selected. Over the years that's been his observation; over the last 35 years he's seen just one strict constitutionalist on the Alaska Supreme Court. He opined that every republican governor since statehood had complained about the names the Judicial Council did not advance. He provided examples. He described the current system as broken and SB 31 as a creative solution. 5:02:16 PM FRITZ PETTYJOHN, former legislator and member of the Alaska bar, Anchorage, Alaska, provided invited testimony in support of SB 31. He mentioned a course he took during law school that advocated for lawyers to advance social justice. He said he didn't believe it then and he hadn't changed his mind. He believes that somebody who wants to advance social justice should run for the legislature, which he did. He opined that the idea that part of the job of judges and justices is to advance social justice is an anathema; their job is to interpret the law as written. Their job is not to create the law. He said there's a fight in this country over US Supreme Court justices; there are conservatives who believe in judicial restraint and liberals who believe in judicial activism. He maintained that the reason Alaska doesn't have that conflict is because the Alaska Bar Association is overwhelmingly weighted with individuals who believe that judges and the court system should advance social justice. He called that backward and opined that SB 31 was a small step in the right direction. SENATOR SHOWER thanked the committee for staying late to hear the testimony. 5:06:06 PM CHAIR KAWASAKI held SB 31 in committee with public testimony open.