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PRESERVING FAIR & IMPARTIAL COURTS: A Brief History of Judicial Selection & Retention in Alaska
Session Three: February 27, 2015
IMPLEMENTING THE JUDICIARY ARTICLE:
Susanne DiPietro, E.D., Alaska Judicial Council
ENSURING JUDICIAL ACCOUNTABILITY: Marla Greenstein, E.D., Alaska Commission on Judicial Conduct
IMPLEMENTING THE JUDICIARY ARTICLE The Alaska Judicial Council’s Role in
Judicial Selection and Retention
Susanne DiPietro, Executive Director Alaska Judicial Council
Alaska Judicial Council, 2010 (Pictured here with three members of the AJC Staff)
•Three Public Members Appointed by the Governor
•Three Lawyer Members Elected by the Alaska Bar Assn •The Chief Justice of the Alaska Supreme Court
AJC’s Responsibilities:
Merit-based Judicial Selection
“The best way to select the best judges.”
-American Judicature Society
Judicial Retention Elections
Judges appear on the ballot at regular intervals after initial selection
JUDICIAL SELECTION
Notice of Vacancy
Distributed to all Active Members of Alaska Bar
Specifies statutory qualifications: 1) Citizen of U.S. & Alaska 2) Years of residency in Alaska 3) Years engaged in active practice of law 4) Licensed to practice law in Alaska at time of
appointment
Application
Requires 24 pages of details on lifelong: 1) Personal History 2) Education 3) Military Service 4) Employment & Experience 5) Public Service 6) References & Recent Case History
JUDICIAL APPLICANT Investigation
Judicial Qualifications Survey to Bar
Professional competence
Integrity
Fairness
Judicial temperament
Suitability of experience
Overall rating
Public Comment Solicited
Investigation, continued
Council evaluates survey ratings, comments
Council interviews applicants in person
Council holds public hearings in the community where the judge will sit
Attorney A Attorney B Attorney C Attorney D Attorney E
Nomination Process
Council members vote on “most qualified” applicants to nominate to the Governor to fill the vacancy Council must forward at least two nominations to the Governor
Appointment Process
Governor has 45 days to make an appointment from the nominations submitted
JUDICIAL RETENTION ELECTIONS
VOTER RETENTION
Judges in Alaska stand before the voters for retention within 2-3 years after their appointment, then at intervals:
Supreme Court: Every 10 Years
Court of Appeals: Every 8 Years
Superior Court: Every 6 Years
District Court: Every 4 Years
AJC ROLE IN RETENTION
Established by legislative action in 1970.
“The judicial council shall conduct an evaluation of each [justice/judge] before the retention election and shall provide to the public information about that justice and may provide a recommendation regarding retention or rejection. The information and any recommendation shall be made public at least 60 days before the retention election. The judicial council shall also provide the information and any recommendation to the office of the lieutenant governor in time for publication in the election pamphlet under AS 15.58.050.”
Investigation
Judicial Council Questionnaire (to judges)
Surveys of 1000s of Alaskans (peace and probation officers, court employees, attorneys, jurors, social workers, child advocates, etc.)
Extensive Feedback (attorneys in recent cases, community-based volunteer court observers)
Peremptory challenge, recusal & appellate affirmance rates; other investigation as needed.
Any disciplinary action or civil/criminal litigation; conflict of interest statements
Investigation, continued
Untimely decisions, if any
Judicial conduct complaints & discipline (if any)
Public Hearing
In some instances, an in-person interview with the judge
Recommendation
After completing an extensive investigation, Council members vote on whether to recommend to voters that a judge be retained.
VOTER PAMPHLET
Finish the Ballot Alaska
Alaskans are provided more information about their judges than any other citizens in the world.
ACCESS TO INFORMATION ON JUDGES
A RECORD OF ACCOMPLISHMENT
Since permanent records have been kept (last 30 years)
142 judicial vacancies 1,149 votes 498 nominees
Over 350 retention evaluations since 1976
A RECORD OF ACCOMPLISHMENT
• High bar survey ratings during the selection process correlated well with high performance evaluation ratings at retention.
• Mean overall ratings of judges have improved over time:
Attorneys: 1984: 3.6 2012: 4.2
Peace and probation officers:
1984: 3.4 2012: 4.2
“Alaskans can be grateful for its framers’ commitment to one of the most important cornerstones of democratic government: a strong and independent judiciary. For over half a century, their wisdom has given strength to the promise of justice for all.”
JUSTICE WARREN MATTHEWS
Alaska Supreme Court 1977-2009
SELECTION CONTROVERSIES Navigating the intentional tension between the role of the Alaska Judicial Council and the role of the Governor. Recurring complaints: Too few names are submitted Favored names are not submitted Nominees are submitted who have previously supported groups/causes the Governor does not support
RETENTION CONTROVERSIES
“No” Recommendations from the AJC:
Unethical Conduct
Inappropriate Ex Parte Communication with Prosecution •District Court Judge Dennis Cummings, Bethel RETAINED, LATER RESIGNED
Providing prosecution with blank orders to sign; sexual harassment •District Court Judge David Landry, Kenai NON-RETAINED
Filing inaccurate affidavits to meet six-month advisement rule •District Court Judge William Estelle, Palmer RETAINED
Mental Health Issues •District Court Judge Richard Postma, Anchorage NON-RETAINED
RETENTION CONTROVERSIES, continued
Organized Anti-Retention Campaigns:
1965: Campaign against Justice Harry Arend based on “Bench-Bar Fight”
1980: Campaign against Justice Warren Matthews based on PFD Case
1988: Campaign against Chief Justice Jay Rabinowitz based on redistricting and alleged “soft on crime” decisions
-Fritz Pettijohn, Former Alaska Legislator, www.reaganproject.com, 2013
Painting of Justice Rabinowitz in the Rabinowitz Courthouse Lobby, Fairbanks Dedicated 2001
2000 & 2010: Campaigns against Chief Justice Dana Fabe by social conservatives
2012: Campaign against Judge Sen Tan based on abortion rulings and others
“A conservative group is targeting a Superior Court Judge in Anchorage who is on the ballot for retention this year. Alaska Family Action is campaigning against Judge Sen Tan for decisions he made in the late 1990s on cases related to the issue of abortion. …Alaska Family Action is using mostly e-mail and the Internet to campaign against Judge Tan. But the group also has a giant RV, nearly completely covered with signs that say ‘Vote No – Judge Sen Tan and No Activist Judges.’ ‘We’re going from Talkeetna down to Homer and everywhere in between, just parking at busy intersections and handing out information,’ Jim Minnery, President of Alaska Family Action, said.” -Alaska Public Media November 1, 2012
Judge Sen Tan, circa. 2012 Then Presiding Judge, 3rd Judicial District One of the most highly rated judges in the state.
RETENTION OUTCOMES since 1984 Five “NO” recommendations by AJC: 1988, 2006, 2008, 2010,
& 2014 Two “NO” recommendations resulting in non-retentions
One anti-retention campaign resulting in non-retention
RETENTION VOTING PATTERNS
Between 84-87% of voters cast a ballot in a statewide retention race;
In uncontested retentions, “yes” votes average between 63 – 70%;
In the face of a “no” recommendation from AJC, or anti-retention campaigns organized by interest groups,
“yes” votes average substantially less
CURRENT CONTROVERSY SJR3 is not focused on Judicial Selection or Retention per se, but on the composition of the Alaska Judicial Council under Alaska’s Constitution
Proponents argue that doubling the number of public members and requiring legislative confirmation of lawyer as well as public members will address the following problems with the current structure:
“Lawyers dominate the council” Most of council’s votes are unanimous or nearly so (81%) Ties between lawyer and public members are rare (16/1,149 votes)
“The Chief Justice votes with lawyer members” Ties of any kind are rare, and the Chief Justice rarely votes (6%) In the 16 cases with public-lawyer ties, CJs voted with public members 5 times, so the concern applies to only 11 cases in 30 years (9 applicants).
“Recent CJ votes show ‘something has changed’”
Since 2010, AJC has evaluated over 200 candidates for 24 vacancies The Chief Justice voted 10 times – less than 5% of all votes The historical average of all CJ votes is 6% Only six of the 200 votes - or 3% - involved lawyer-non-lawyer ties, a percentage consistent with the historical average.
The council needs greater diversity.
SJR3 does not require demographic, geographical, or ideological diversity in the governor’s appointments to the council. Past governors have appointed minority members and rural members but 2015 was the first year such an appointment had been made in over a decade.
ENSURING JUDICIAL ACCOUNTABILITY The Role of the Alaska Commission on Judicial Conduct
Marla Greenstein, Executive Director
Alaska Commission on Judicial Conduct
ALASKA COMMISSION ON JUDICIAL CONDUCT
Created by the legislature in 1968 as the third independent arm of Alaska’s Judicial Branch
Enforces Alaska Code of Judicial Conduct
Recommends judicial discipline (including suspension &
removal from the bench) to the Alaska Supreme Court
TYPES OF COMPLAINTS ACJC ADDRESSES
1. MISCONDUCT
a) Improper Courtroom Behavior b) Improper or Illegal Influence
c) Impropriety Off the Bench d) Other Improper Activities
2. PHYSICAL OR MENTAL DISABILITY
Including: Alcohol or drug abuse, senility, serious
physical illness, mental illness
Source: ACJC Annual Report 2013
Source: ACJC Annual Report 2013
Source: ACJC Annual Report 2013
…
ALASKA’S STATE COURT JUDGES SELECTED for Excellence
RETAINED by Voter Confidence ACCOUNTABLE to All Alaskans
Next:
THE FUTURE OF FAIR & IMPARTIAL COURTS: Current Controversies & Concerns in Alaska & the Nation
Learn about judges on the ballot for retention…
Be an informed voter….
And VOTE!
Disputed Vote Sample Source: “Vote Tally Sheet” and “Mean Ratings of Applicants,” Anchorage Superior Court Vacancy, August 2012, from the public records of the Alaska Judicial Council
