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Legislators should not change Alaska's Constitution to let politics taint its courtrooms

Marcelle McDannel

We have a pretty short legislative session, but sometimes I’m not sure it’s short enough. Each year, as the session begins, I get a knot in my stomach as our legislators reveal the new ideas they’ve come up with to “fix” things that just aren’t broken. That familiar knot developed into an extreme bout of legislatively-induced nausea when I discovered that, this year, the legislature wants to mess with the Alaska Constitution.

Senator Pete Kelly, R-Fairbanks, has proposed a constitutional amendment, Senate Joint Resolution 21, to change the way judges are selected by screwing around with the composition of the Judicial Council. The Judicial Council, set up by Article IV of our Constitution, vets applicants to vacant state court positions before any of them are forwarded to the governor, who makes the final appointment. It was designed to weed out unqualified applicants. Currently, there are three public members on the Council, along with three lawyers and the Chief Justice of the Alaska Supreme Court, who casts a vote only if there is a tie. Senator Kelly wants to add three more public members so that they would outnumber the lawyers two to one.

Let’s be clear that the “public members” are not just citizens selected at random. No one is going to tap you on the shoulder as you’re walking down the street and ask if you want to be a member of the Judicial Council. Public members are political appointees, selected by the governor to advance his political agenda. Adding political appointees is an effort to inject more politics into the way we select judges.

This is exactly what the delegates to our Constitutional Convention wanted to prevent. We are all fortunate that our delegates were not political hacks who wanted to advance their personal agendas. Looking at the collective good, they designed the Judicial Council as a way to keep politics out of our courtrooms. As one of them said during the debate, the delegates wanted the courts to be “strictly nonpartisan” and “independent so that they can be fearless and interpret the law equal to all and special privilege to none.”

Because Alaska’s Constitution was written in the 1950’s, the delegates had 48 examples for ways Alaska could select its judges. Trying to avoid problems that had arisen in other states, they rejected allowing the governor to directly appoint judges, because they wanted “a judiciary that will not be swayed by the public will at any particular moment, a judiciary that will not be subject to pressure from the executive branch of the government.”

This seems like a particularly wise approach given our governor’s recent history with insufficiently vetted political appointments. Remember the former judge from Pennsylvania appointed as a hearing officer for our state’s Division of Worker Compensation? Judge Paul Pozonsky left the East Coast for Alaska just as he was being indicted in Pennsylvania for stealing or tampering with cocaine in 16 drug cases that came before his court. Or how about the governor’s recent attempt to appoint an oil executive from California to the State Assessment Review Board in violation of state law that requires such appointees be Alaska residents? Stacking the Council with political appointees whose main qualification is that they share the governor’s political agenda is a dangerous subversion of the delegates’ goal of a non-partisan, independent judiciary.

In its present form, Alaska’s Judicial Council was based on the idea that lawyers, unlike political appointees, would have an interest in keeping unqualified applicants off the bench -- an interest that has nothing to do with politics. Adopted from Missouri, the theory behind it, was that “a select and professional group, licensed by the state, can best determine the qualifications of their brothers.” Today, we would add sisters too -- this was, after all, the 1950s. But the point is valid. If, for example, you’re looking for information about a plumber’s abilities, who are you going to ask: another plumber or a political appointee?

Unlike political appointees, lawyer members of the Judicial Council have more practical concerns in weeding out aspiring judges. Inside of the courtroom, judges have almost authoritarian power. They tell lawyers what to do, how they may do it, and make decisions that can undermine a lawyer’s case even if those decisions are wrong. A bad judge is a lawyer’s nightmare.

What makes a bad judge? After many years of appearing in front of many different judges (differing in personality types and abilities, not so much in race or gender), I can tell you that I care very little about personal politics. I’m pretty sure that some of my favorite judges have political beliefs quite opposite of mine. What I am looking for in a judge is someone who is even-tempered, courteous and smart. As a potential client, perhaps not of mine but of some other lawyer, these should be your concerns, too.

Regular folks, not just criminals, find their way into our state courts. You might find yourself coming before a state court judge to contest a will or settle an estate, for a divorce, or to evict bad tenants. Or perhaps you need relief from a nasty landlord, protection for an elderly or infirm relative, you have to enforce a contract, keep the government from infringing on your constitutional rights, or adjudicate any type of civil dispute.

Ill-tempered judges make the experience of being in court unpleasant for everyone -- not just for the lawyers, but clients, witnesses, and jurors. Under-qualified judges make bad rulings. Bad rulings create more work. Extra motions must be filed asking the judge to reconsider the bad decision, and if that doesn’t work, the bad decision must be appealed to a higher court.

If you are not particularly moved by the esoteric appeal of a nonpartisan judiciary, consider this: Lawyers don’t do all of the extra work caused by bad judges for free. The expense is passed on to you, the client. Imagine finding yourself in some legal dispute and having to pay your lawyer thousands extra -- more likely tens of thousands extra -- to file an appeal because an under-qualified judge made an obvious legal error in your case. As you write out that check, you too may find yourself experiencing a nasty bout of legislatively-induced nausea.

Marcelle McDannel has been working in criminal law for almost two decades, both as a prosecutor and criminal defense attorney. She currently practices criminal defense statewide.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch, which welcomes a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadispatch.com.

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