A little more than a year ago, Sen. Pete Kelly, R-Fairbanks and chair of the Senate Finance Committee, introduced a Senate Joint Resolution that “is a sure road to destruction of judicial independence,” according to former Alaska Supreme Court Chief Justice Bud Carpeneti.
“It’s a really bad idea to mess around with Article IV of our constitution,” Carpeneti said to a crowd of business leaders at the weekly Juneau Chamber of Commerce luncheon Thursday.
Article IV is the judiciary article of the Alaska Constitution, and it lays out the process of how the governor is to fill judicial vacancies. It describes the composition and role of the seven-member Alaska Judicial Council that nominates judicial candidates, and it establishes judicial term limits and the retention-or-rejection process.
According to Carpeneti, it “is the envy of the nation” and the reason why Alaska has a “corruption-free” judicial system.
“Having worked so well — and I believe it has — why does anybody want to change this?” he asked.
During his talk, Carpeneti deconstructed the argument supporting Kelly’s Senate Joint Resolution.
The three-point argument, as Carpeneti tells it, holds that:
• Attorneys, who make up three of the seven positions on the council and are appointed by the state bar, dominate the council,
• The Chief Justice, who sits on the council in a tie-breaking capacity acts as a gatekeeper, limiting the number of judge candidates sent before the governor,
• There is a lack of rural representation on the council,
In order to fix these perceived problems, the resolution proposes adding three non-attorney positions — in addition to the three that already exist — all of which would be filled by governor appointment. Additionally, all appointments, attorney and non-attorney, will be subject to Legislature approval.
The problem is, Carpeneti said, “none of these hold water.” “When you look at the numbers, it just doesn’t add up at all,” he said.
Of the 1,171 votes the council has taken part in, council members have voted unanimously or unanimously with the exception of one member 81 percent of the time, he said. There has been a three-three split between the attorney and non-attorney members in less than 1.4 percent of all votes. This, Carpeneti said, shows that the attorney members are not frequently overpowering their public peers.
The position of the chief justice has had to break a tie in less than 6 percent of all votes, showing that the chief justice is not the strict “gate-keeper” he or she is made out to be, Carpeneti argued.
Overall, Kelly’s proposed changes would make judicial appointments more political, which could even hurt businesses, Carpeneti said.
“Businesses depend on a stable judiciary of the highest quality, not one weakened by inappropriate political considerations,” he said. “You want technicians, competent judges that are not wedded to one side or another and they have someone looking over their shoulder.”
This is why Carpeneti, who is now retired, founded Justice Not Politics Alaska, a nonpartisan group of Alaskans trying to fight Kelly’s resolution.
“We are involved in politics because we don’t want judges to be,” he said.
Kelly’s Senate Joint Resolution 3 places a constitutional amendment on the next general election ballot that allows the voters to decide whether the membership of the judicial council should require the legislative confirmation, and whether it should be expanded to include three additional public (non-attorney) members.
In the original sponsor statement, Kelly said emphasized that it would increase the public’s voice on the council, diversify the council and fix the “stark glaring oversight” of the lack of legislative confirmation of council members, which is required for every other Alaskan regulatory or quasi-judicial agency according to the constitution.
• Contact reporter Sam DeGrave at 523-2279 or at email@example.com.