Judicial council work should be commended

Posted: Sunday, March 20, 2005

Ketchikan Daily News By Lew Williams

An advertisement in the Wall Street Journal March 9 listed Alaska 33rd in a list of "Best to Worst Legal Systems." That sounds bad. The same week, an Alaska House Finance Subcommittee cut 10 percent out of the budget for the Alaska Judicial Council without council consultation. On top of a 10 percent cut last year and an increasing work load mandated by the constitution and the Legislature. That is bad.

In its WSJ ad, the Institute for Legal Reform, sponsored by the United States Chamber of Commerce, used a Harris Poll to rate "state liability systems" rather than the quality of justice. Alaska came out 33. That means its court system is not the stingiest when it comes to lawsuits against industry or the most liberal. Right in the middle sounds fine.

Actually, the Alaska merit system of selecting and reviewing judges is so well admired that the American Judicature Society has asked the Alaska Judicial Council to help prepare a handbook of procedures for states' nominating commissions.

The Alaska judicial merit system is outlined in the state constitution. No procedures were set so on occasion it failed at first to perform as intended. That was because the Legislature failed to fund it in the first 12 years of statehood.

This writer was appointed to the council by Gov. Bill Egan in 1972 to fill out the four years remaining in the 6-year term of Oral Freeman, who had been elected to the Legislature. The first thing Freeman did in the Legislature was sponsor legislation to fund council operations.

Prior to that, the chief justice of the Alaska Supreme Court, serving an unlimited term, ran the council - meaning the selection of applicants for the bench - out of his hip pocket. The council, composed of three attorneys appointed by the Alaska Bar Association and three non-attorneys appointed the governor and confirmed by the Legislature, rubber stamped. Little review of candidates was conducted.

With a budget, that changed. The chief's job now rotates every three years and the council reviews applicants for the bench and sends two or more qualified applicants to the governor.

Gov. Frank Murkowski didn't like that on several occasions and neither did Gov. Walter Hickel on one occasion. Each wanted more names. But there are the rules to follow. This writer discovered that when considering four or more applicants, usually two or three are better suited than the rest.

And the governor is able to affect the judiciary through appointments to the council, provided legislators agree, and through final appointment of judges and justices. The system provides quality justice isolated from unreasonable political pressure.

With funds and a staff, council members established a system for reviewing candidates for the bench and for reviewing the performance of sitting judges. That gave the council trouble in the late '70s and early '80s. Some judges appointed under the old system were deemed unsuited for the job. They finally were replaced.

The council polls attorneys, police officers, court personnel and jurors who rate the judges in a number of areas. The council reviews comments from volunteer court watchers. It reviews appeals in which judges are involved and any disciplinary action. The timeliness of a judge's decisions, a credit history and any litigation involving the judge are considered.

Judges are personally interviewed by the council if there are concerns. Opinions are solicited from the public via a web site and public hearings.

The council assessment is published in the state voter pamphlet. The system works. There has been no recommendation against retention of a judge since 1988. And since 1984, scores accorded judges by those polled have risen from an average of 3.7 to higher than 4 on a scale of 5.

Candidates for the bench are as thoroughly screened and personally interviewed. Critics who have never attended a council meeting say that the lawyers always line up against the lay members. According to council minutes, the vote split that way only twice in the last 600 ballots.

Little publicized, but required by the constitution, is that the council conduct studies to improve the quality of justice in Alaska. None were done until the council was funded. One of the first studies reviewed sentencing and found that a perpetrator got off easier before a judge in Southeast than before a judge in Fairbanks. That led to mandatory sentencing.

The trouble the council has with legislative budget cuts, is that the council's work load is increasing. Back in '72 there were 37 judges in the Alaska system. Currently there are 62 with the Legislature looking to create another in Bethel. An average of eight vacancies a year have been filled in the past three years. Nine judicial vacancies have occurred since August. On the 2006 ballot, 33 judges are up for retention. All must be reviewed for the voters.

It is an insult to degrade the work of a council that has included such members as former Territorial Gov. Mike Stepovich of Fairbanks, former state legislators Oral Freeman of Ketchikan, Pete Meland of Sitka, Jack Longworth of Petersburg; highline fisherman Bob Moss of Homer; prominent physician Dr. William Whitehead of Juneau; former constitutional convention staffer and lawmaker Katie Hurley of Wasilla; and Anchorage attorney Ray Plummer, who became a U.S. District Court judge.

Alaska has an outstanding judicial system, partially thanks to lawmakers who authorize and finance judicial positions. Continued financial support is a real mandatory sentence.

• Lew Williams Jr. is former publisher of the Ketchikan Daily News.

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