A proposed constitutional amendment that would have restructured the Alaska Judicial Council died on the Senate floor Saturday, April 12.
Senate Joint Resolution 21 (SJR 21), sponsored by Sen. Pete Kelly (R-Fairbanks), was introduced for debate, then withdrawn, ending its chances for passage during the current session.
The Judicial Council is composed of three lay members appointed by the governor, three attorneys appointed by the Alaska Bar Association, and the Chief Justice of the Alaska Supreme Court, who votes on judicial nominees in the event of a council tie. Kelly’s resolution, after it was amended in committee, would have added three lay members.
SJR 21 was on the Senate calendar for eight days before it finally made it to the floor. Kelly said he had three objectives: to correct what he felt was an imbalance in regional representation; to prevent a conflict of interest for a tie-breaking Chief Justice who could be choosing a colleague; and to bring accountability to the attorney members, who he said are not elected, but rather appointed by the state bar — which he described as a “guild.”
On his first point, Kelly alleged that only twice had a rural lay member been appointed to the council, in 1961 and 1987. Sen. Hollis French later debunked this claim under Special Orders, listing a variety of sources for members stretching from Barrow to Ketchikan.
“I wanted to make sure the people of Alaska understood their judges are not being chosen with their consent,” Kelly said on the floor. “They don’t have any consent in this process.” Kelly is choosing to completely discount that all judges, regardless of their court level, are subject to retention votes of the people. Further, his concern about the appointment of attorneys by the bar was addressed in federal court in 2009, according to Alaska’s Constitution: A Citizen’s Guide, and deemed constitutional.
Kelly expressed frustration that in tie-breakers on the Judicial Council, the Chief Justice habitually “came down on the side of the attorneys, not the people.”
“Today we begin the debate on this,” said Kelly.
You don’t get a constitutional amendment on the floor passed unless you have 14 votes, ok? Probably don’t have 14 votes, but I thought it was important to have this discussion. And I want to assure the members that I didn’t frivolously bring this to the floor so that I could have my moment in front of the cameras. We thought we had 14, and that stuff happens.
Kelly’s remark about not meeting the 14-vote (two-thirds) threshold to pass the measure was likely a shot at Sen. Click Bishop (R-Fairbanks), who publicly spoke against the resolution, for which he was chastised by the majority caucus.
After Kelly finished speaking, he immediately asked for an at ease of the Senate. When the Senate returned to order, Kelly moved for withdrawal of the motion, effectively ending the debate he began and wished to have. The decision apparently was not his, but that of Sen. Lesil McGuire (R-Anchorage), chair of the Senate Rules Committee — and, ironically, a bill co-sponsor.
Senators Hollis French (D-Anchorage) and Bill Wielechowski (D-Anchorage) did not let the opportunity for debate slip away. Each spoke during Special Orders. French said Kelly had not established the necessary “burden of proof” to change the constitution.
Wielechowski added that he also wanted to “offer a little bit of a rebuttal because I know people in the public are talking about this, and if we’re having a debate, I think it’s important that people hear both sides.”
Alaska, he said, drafted one of the last constitutions in the U.S., and therefore had the privilege of learning from other states’ mistakes.
Addressing the council makeup, Wielechowski asked and answered his own question: “Why have three attorneys there? The lawyers practice with these people every day. They know who the good attorneys are. They know who the bad attorneys are. You have this delicate system that’s put in place. It’s called the Missouri System. There’s many states that have this system.”
Missouri began the merit selection of judges in 1946.
As to Kelly’s concerns about the Chief Justice’s potential tie-breaking vote, Wielechowski noted that the legislature gave the Chief Justice that authority on the makeup of the Redistricting Board, as well. “It’s not unusual to give the Chief Justice that tie-breaking ability.”
Of the 1,136 council votes in the last 30 years, only 15 times have the attorneys and lay members split. Ten of those 15 times, the Chief Justice agreed with the attorneys because their recommended nominee had higher scores, Wielechowski said.
“I agree there’s a problem,” he continued.
I think we should have more rural members on the Judicial Council, but there’s nothing stopping the governor right now from appointing a rural member to the Judicial Council, nothing at all…. The problem is we have not, since Gov. [Tony] Knowles had anyone from rural Alaska appointed to the Judicial Council. I guess if people have concerns, I can’t answer why Gov. [Frank] Murkowski, Gov. [Sarah] Palin, Gov. [Sean] Parnell didn’t appoint a Native… or someone from rural Alaska to the Judicial Council. They could have very easily done so, and I hope they do on the next appointment that comes up.
However, said Wielechowski, all rural Alaska organizations who testified, including the Alaska Federation of Natives (AFN), opposed SJR 21.
While Wielechowski’s comments about the recent history of appointments are clearly partisan — Knowles was the last Democratic governor elected in Alaska — his point was well made. Aside from retention votes, citizens may petition the governor and the legislature to influence the regional representation on the Judicial Council, contrary to Kelly’s assertion that the people have no influence.
It has been thoroughly documented that Kelly’s beef is not with the Judicial Council per se, but rather the entire judicial branch. On issues that Kelly holds dear, like his opposition to abortion, court decisions have not broken his way, dating back to at least 2001. Stacking the council is merely the latest vehicle Kelly has used to buck that trend. In the first session of this legislature, Kelly tried to eliminate the council’s role in recommending judges for retention, a role assigned by the legislature in 1975. That bill (SB 76) never made it out of the Judiciary Committee. It had no co-sponsors.
Kelly began floor debate on April 12, saying, “Now, before we entered this task of changing the constitution, we did not take it lightly. The constitution is a fairly sacred document to many of us, but it does contain within itself provisions to change it because it’s not a perfect document. It’s flawed, like everything else humans do.”
Pete Kelly is not kidding when he says he believes the constitution to be flawed based on the potential ramification of SJR 21. A governor would appoint six of the ten members of the Judicial Council, who would then provide him with a list of potential judicial nominees. This would provide tremendous influence to the executive branch over the judicial, upsetting the balance between branches and violating the separation of powers.
Only someone who believes the constitution to be deeply flawed, and who expects his party to retain control of the governor’s mansion and the legislature, would recommend that kind of action.
Jim Minnery of the Alaska Family Council/Action, with whom Pete Kelly is in ideological agreement, blogged that SJR 21 “would fundamentally transform the Council from a panel dominated by legal elites into a panel dominated by non-attorney citizens” (a point also noted by Richard Mauer at the ADN).
The words “elites” and “non-attorney citizens” are carefully chosen. They appeal, first, to a societal bias against attorneys — who doesn’t know a good lawyer joke? — and, second, to a large segment of the population with a mistrust of experts, of so-called “elites.” Kelly had the same thing in mind when he said that the Chief Justice on the council “came down on the side of the attorneys, not the people.” The suggestion is that the attorneys are not to be trusted, maybe not even people. The truth is that all members on the Judicial Council, as part of the government, are The People, regardless of their background.
Kelly and Minnery are trying to tap into an anti-intellectual populism to get the results they want. This behavior fuels hyper-partisanship. And though it is all too common at all levels, it has no place in government or reasoned discourse.