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Alaska Legislature

Wasilla lawmaker introduces bill that would upend the way Alaska selects some judges

Sen. Mike Shower, R-Wasilla, is seen during a Senate State Affairs Committee meeting on Thursday, Jan. 28, 2021. (James Brooks / ADN)

A Mat-Su state senator has introduced legislation that would upend Alaska’s longstanding system for choosing judges, the latest salvo on a long running effort by conservatives to reshape the state’s judicial selection system.

Senate Bill 14, introduced in January by Sen. Mike Shower, R-Wasilla, would allow the governor to directly appoint judges to the District Court and to the Court of Appeals — but not the Superior Court or Alaska Supreme Court, which can’t be changed without a constitutional amendment.

Conservatives have long hoped to dismantle Alaska’s judicial selection system, which they assert gives too much power to unelected attorneys and keeps conservatives off the bench.

“This bill will divest some of the power to appoint judges from the Bar Association-controlled Judicial Council and provide some accountability and transparency to the process of who gets appointed to the bench,” Shower said in an email. “If the governor appoints and a legislature confirms a judge, they both will be accountable to the voters on a regular basis.”

But detractors argue the bill would gut Alaska’s “gold standard” judicial selection, turning judgeships into political patronage appointments.

“This represents a concerted strategy to dismantle Alaska’s system of selecting judges based on merit and replace it with a process that relies primarily on politics,” the group Justice Not Politics said in a statement. “This is the opposite of what the framers of our constitution intended.”

The Alaska Supreme Court took the unusual step of sending Alaska Court System’s attorney Nancy Meade to argue against the bill at a tense Judiciary Committee meeting in Juneau on Friday.

Meade told the committee that the court system avoids taking a public position on most legislation. Senate Bill 14 was an exception, she said.

“In the court’s view this bill will undermine the independence of the judiciary and public trust in the court system and hinder our ability to handle cases effectively and fairly,” Meade told the committee.

The bill would “make politics and political affiliation a key factor for seating judges,” she said.

Alaska’s system

Since statehood, Alaska has used a system in which the Alaska Judicial Council, made up of three Alaska Bar Association-chosen lawyers and three community members, with a tie-breaking vote by the Alaska Supreme Court Chief Justice, selects the most qualified applicants for judicial positions and then sends a list to the governor, who must then make a nomination from the list.

Voters weigh in on judges through retention elections every few years.

Social conservatives have long argued that Alaska judges are “legislating from the bench” in rulings on cases involving issues such as abortion and gay rights, and that their rulings don’t reflect the will of the Legislature or people.

“Our current system gives a trade group of elite lawyers virtually unlimited power to control the Judicial Council, which in turn has unlimited power to control one-third of our government,” Alaska Family Action executive director Jim Minnery wrote in an email to his supporters urging them to testify in favor of Senate Bill 14. “We shouldn’t be surprised that Alaska has so many far-left judges who are filled with hubris, and full of contempt for the other two branches of government that are chosen by the people.”

Minnery did not immediately respond to an interview request Tuesday.

Justice Not Politics argues Alaska is on the forefront nationally of merit-based judicial selection.

“The movement is generally toward merit based (selection),” said Walter L. Carpenti, a retired Alaska Supreme Court Chief Justice who now volunteers for the Justice Not Politics organization.

Senate Bill 14 is only the latest in a long history of attempts to change the judicial selection system, said Carpeneti.

“I think it’s been a continuous drumbeat of trying to do away with merit selection,” Carpeneti said.

But it is different, because previous tries at dismantling the system have relied on a constitutional change — a high bar. This time, a legislative majority could change the rules.

“The constitutional amendment route has been tried in vain for many years,” Shower said, calling the bill a “fresh statutory approach.”

In the fall, conservatives targeted judges including Supreme Court Justice Susan Carney in campaigns against retention, highlighting rulings in specific cases, including those involving abortion. Voters retained all the judges — even those facing opposition campaigns — by higher margins than in the past, according to data from the Alaska Judicial Council.

The proposed law, which Shower first introduced during the last legislative session, would change the way judges are chosen for two levels of the Alaska judiciary: The District Court, which largely handles misdemeanors, and the Court of Appeals, which handles criminal case appeals, both created by the legislature.

It would not alter the system for appointments to the Superior Court, where most criminal and civil trials happen, and the Alaska Supreme Court. Those courts were created by the Alaska Constitution and would require a constitutional amendment to change.

The bill also says the judicial council can only submit candidates to the governor “only if ... the council determines that the judicial candidate understands and is committed to strict constitutional interpretation of statutes and regulations and adhering to legislative intent.”

Additionally, it would shift the responsibility for evaluating judges from the judicial council to the Alaska Commission on Judicial Conduct, which handles complaints about judge behavior.

On Wednesday, Senate Judiciary Committee chair Lora Reinbold, an Eagle River Republican, said the committee would take up the bill again Friday. Because the bill has a potential budgetary impact, it will likely be referred to the finance committee.

Correction: An earlier version of this story incorrectly reported the margins by which Alaskans voted to retain judges in the 2020 election. Alaska judges were retained by higher margins than usual, not lower margins.


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