Lawmakers push to change the way Alaska judges are selected; defenders of system say nothing's broken

ldemer@adn.comFebruary 21, 2014 

JUNEAU -- A proposal that would dramatically reshape Alaska's system of selecting judges is getting a close look in the Senate Judiciary Committee and drawing sharp opposition from the Alaska Supreme Court and the Alaska Court System, who say there's nothing broken.

The issue concerns the Alaska Judicial Council, a citizens' commission established in the state constitution that serves as a clearinghouse for judicial candidates, vetting applicants for open seats and sending top contenders to the governor for consideration.

While the council may not be well-known to the general public, it's often a target of conservatives who complain that its makeup -- three lawyers, three non-lawyers and the Supreme Court chief justice as the tie breaker -- skews judicial appointments liberal.

State Sen. Pete Kelly, R-Fairbanks, is proposing a constitutional amendment, Senate Joint Resolution 21, to add more public members so that they outnumber the lawyers. He told the Judiciary Committee last week that he wanted more geographic areas of the state represented and originally proposed a 16-member council: 10 public members, five lawyers and the chief justice.

But after criticism that a huge council would be unwieldy, the committee -- with Kelly's approval -- scaled it back Friday to 10: six public members, three lawyers and the chief justice.

That isn't muting the concerns.

Nancy Meade, general counsel for the Alaska Court System, testified Friday that Alaska's method of appointing judges has worked well for more than 50 years to ensure "a top notch group of judges."

The court system rarely takes a position on legislation and was only doing so "at the direction of the Supreme Court," she said.

"We have a merit selection process, which is considered the gold standard in judicial selection around the country if what we want is fair, impartial judges," Meade told the Senate committee. It's a nonpartisan model known as the Missouri Plan, and a number of other states use it as well. Appointed judges then stand for election.

The council is separate from the court system, which depends on its work, Meade said.

The governor appoints the council's public members and they must be confirmed by the Legislature. But lawyers are tapped by the Alaska Bar Association board of governors in a process that's out of public view. Their terms run six years.

Most of the time, the council members -- who are volunteers -- agree on which candidates to forward to the governor for consideration, Meade said.

From 1984 to 2013, the council voted on 1,136 judicial applicants, and for 704 of them -- 62 percent -- the vote was unanimous. Even more -- 82 percent -- were either unanimous or unanimous except for one vote, she said.

Just 15 times in those 29 years did the chief justice vote to break a 3-3 tie with attorneys on one side and public members on the other, she said. Ten times, the chief justice sided with the lawyers.

Seven of those tie-breaking votes between the lawyers and the public came in the last four years. Five times, the chief justice sided with the lawyers not to send a name to the governor even though the public members wanted that to happen, Meade said.

The five individuals likely "for whatever good and valid reason were considered not to be qualified," she said. Several were applicants to the Supreme Court, a very demanding job. The same person came up twice, and two different chief justices voted not to send the name on to the governor, she said.

"It's such a small number, it's hard to see that this is something that needs to be addressed with something so dramatic as a constitutional amendment," Meade said.

While there may be a slight bump in 3-3 splits in recent years, "we just don't have the evidence and data to show that something needs to be done," she said.

Sen. Fred Dyson, R-Eagle River, said lawyers might have an outsized role on the council because of their training and knowledge. School boards, for instance, can be overwhelmed by the expertise of school administrators, he said.

"They don't compete on a level field. They don't have the experience, nor does the lay person there have the resources to do the research that attorneys have," Dyson said.

He said he worries that lawyers might pick candidates who think the constitution needs to be updated in a changing world.

Senators are hearing from council members themselves, who have come out on both sides of the issue.

New council member Dave Parker, a former Anchorage police officer and department spokesman who now lives in Wasilla, told the committee last week that the council would inspire more confidence if public members outnumbered the lawyers.

"I've heard phrases like 'You've put the fox in charge of the henhouse,'" Parker testified.

But Bill Gordon, a lifelong Alaskan who served six years on the Judicial Council, said at Friday's hearing that public members and lawyers alike are well prepared with binders of information on candidates.

The mission is not to recommend all qualified candidates, he said, but to identify "who among them are the most qualified."

Any assertion of conflicted interests between the lawyers and the public members is not based in fact, he said.

"Having served for six years, I could say nothing could be further from the truth," Gordon said.

Kelly, in discussing his proposed amendment, talked about the need for more diversity on the panel. No attorneys from rural Alaska have ever served on it, and few of the public members have come from rural areas, he said last week. And the newly added public members would undergo the confirmation process.

"I'm dying to hear the argument against that," Kelly said.

The proposal would only add costs and inefficiencies without any evidence of a problem, Gordon said.

After the hearing, Sen. John Coghill, R- Fairbanks and the Judiciary Committee chairman, said he supports the proposed constitutional amendment but knows how serious such a change is. He wants to give it a thorough review.

Asked whether the proposal is trying to address perceptions of liberal or activist judges, he said that was a concern.

"That's a problem with schools. That's a problem with universities. That's a problem with judges. That's a problem with the legal system. It has a tendency to be more liberal than my constituency," Coghill said. "So we're just asking, can voices from that constituency be heard be better?"

He's planning a third hearing Monday with more public testimony.

The council's current members are non-lawyers Parker of Wasilla, Ken Kreitzer of Juneau, and Kathleen Tompkins-Miller of Fairbanks. The lawyers are Aimee Oravec of Fairbanks, Kevin Fitzgerald of Anchorage and Julie Willoughby of Juneau. Dana Fabe is the chief justice member.

 

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