Fischer, Carpeneti defend judge selection system at state bar convention

FAIRBANKS -- A former chief justice of the Alaska Supreme Court and a former delegate to the Alaska Constitutional Convention concurred that a legislative proposal to rework the merit-based system of selecting judges in Alaska by giving elected officials more influence in selecting candidates would promote politics over justice.

"We have a good democratic underpinning for the judicial system," said Vic Fischer, one of the 55 delegates to the convention. He said the long-established practice of selecting candidates for judgeships and the rules governing retention elections for judges have served the state well.

The subtitle of the presentation Wednesday at the annual conference here of the Alaska Bar Association, "Alaska Merit System in the Crosshairs," reflected the views shared by Fischer and Walter "Bud" Carpeneti, a retired Supreme Court justice, that a proposal by Fairbanks Sen. Pete Kelly threatens the independence of the judicial branch.

Kelly has introduced a proposed constitutional amendment, Senate Joint Resolution 3, to add three members to the Alaska Judicial Council and require all of its members to be confirmed by the Legislature. Kelly seeks to reduce the power of the Alaska Bar Association, which under the Constitution is authorized to select three members for the council, who do not require legislative confirmation.

Carpeneti, who worked as a judge for 30 years, has spent much of the past year talking to legislators and the public about the need for impartial judges and is a co-founder of "Justice Not Politics Alaska," a group that is fighting the proposed amendment and "increased political influence." He said the theory of the bar association's involvement is that fellow lawyers are in a good position to know the abilities of candidates and have an interest in selecting the best applicants because they will be working with them.

He said in three years as chief justice, he met many judges in similar positions from other states and they all regarded the Alaska selection system as a great one. It has the "perfect balance between merit and appropriate political input," he said.

The Constitution provides that in addition to the three members named by the bar association, the governor appoints three members to help select candidates and the chief justice of the Supreme Court serves as an ex-officio member, casting a ballot only to break a tie. The council reviews candidates for the bench and forwards names to the governor, who makes the final choice. After judges are in office, they face retention elections. Carpeneti said these checks and balances recognize competing interests and keep partisan politics to a minimum.


"I think it's given us a judiciary where you don't walk into a courtroom and say, 'How much did this one contribute to my campaign? And how much did this one contribute to my opponent's campaign?'" Carpeneti said.

Kelly, who refers to the Alaska Bar Association as a "guild," contends that the constitutional provision giving authority to the bar association is a flaw in need of fixing. Fischer and Carpeneti said Wednesday that Article IV, which sets the rules for the judicial branch, provides a degree of insulation that allows people to become judges through a test of competence, not of political affiliation based on who is in office at the moment.

The theory of the judicial selection process is that candidates are selected on merit and competence in the initial phase, but the governor is responsible for making the final choice and the electorate has a chance to weigh in through regular retention elections.

Carpeneti served as a Superior Court judge in Juneau from 1981 to 1997 and on the Alaska Supreme Court until his retirement two years ago.

Carpeneti and Fischer said the Kelly plan would destroy the balance that has been a hallmark of the independent judiciary in Alaska since statehood and outlined a series of checks and balances. The Kelly plan "would gravely threaten the fairness, the independence and the excellence of our courts" and open the state to the possibility "of the kinds of abuses never seen here before, but unfortunately all too common in the other states," Carpeneti said.

Kelly introduced the measure in 2014, but could not line up 14 votes in the Senate to advance the plan, as Fairbanks Republican Sen. Click Bishop opposed it at a key moment. Kelly reintroduced it again this year and it will be under consideration by the Legislature in 2016. A proposed constitutional amendment requires a two-thirds vote in each house of the Legislature and approval through a statewide election.

Fischer, 91, said that he believes the judiciary rules have withstood the test of time. He did say that he would support one change, however.

"The one criticism I have is the age 70 retirement requirement" for judges, he said to laughter from the hundreds in the Gold Room at the Westmark Hotel. "I want you to know that seemed very reasonable when I was 31 years old."

Dermot Cole

Former ADN columnist Dermot Cole is a longtime reporter, editor and author.