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Will the Legislature take on the Judiciary?


Last week, the Alaska Superior Court scolded the state’s redistricting board. The court found the 2012 voting districts unconstitutional. Judge McConahy drove home the view of the court: “[T]he failure to adopt a plan consistent with the Alaska Constitution results in depriving the whole state of Alaska of proper representation.”
Three years after the census, Alaska still does not have legal district lines.
The sharp tone McConahy embraced in his rebuke of the Board came at a risky time. Redistricting aside, the legislature is still vested with the legislative power of the state. And they seem to really enjoy using it.
At the time the current Board was created, all but one of the officials in charge of appointments were Republicans. They appointed accordingly and drew the district lines they wanted, though evidently not legally. Republicans occupy the Governor’s mansion, hold strong majorities in the legislature, and appear confident that control of the third branch – the one that no party is supposed to control – is now achievable.
Judge McConahy might have provided them the incentive to make it a priority.
Throughout last session, the majority asserted an imaginary supremacy over the judiciary. A lot of those magical assertions became law, on the off chance the judiciary might ignore its own precedent. With the fervent support of the governor, the legislature took an adversarial posture toward the court, and, in doing so, exposed a dysfunctional misunderstanding of the judiciary as a competing branch of government.
In April, Sen. Pete Kelly (R-Fairbanks) took to the floor of the senate to launch into a bizarre display of this sentiment:

Some of the debate I’ve heard on this and other bills disturbs me a little bit when it comes to our relationship with the courts. I heard words… about how the courts gave us our marching orders, or that if we change this law we’re in violation of the court order. We make the laws here. We need to stand up for our branch of the government…. We seem to have just handed so much over to the court. They are not our masters.

The Anchorage Daily News[1] reacted: “The Alaska Senate does not decide what the constitution means. The branch of government that interprets the constitution is the judiciary. This is a basic fact under the separation of powers in the American and Alaska constitutional systems.”
Quick clarification: That wasn’t an article addressing Sen. Kelly’s confusion about how government works in 2013. That was addressing Sen. Kelly’s confusion about how government works in 2001.
The Fairbanks Republican has managed to fend off a basic understanding of the judiciary for well over a decade in order to maintain a disagreement he had with a 2001 ruling. The Court decided unanimously that the state must pay for medically necessary abortions if it seeks to provide maternity care. Not doing so violated the state constitution’s equal protection clause.
There has been a bill attempting to circumvent that ruling every session since. Each attempt stalls out after the legal department reminds legislators that it would likely be ruled unconstitutional.
Sen. Kelly has been looking for another strategy.
Once every ten years, state supreme court justices must appear on a ballot. The Alaska State Judicial Council is an independent agency that thoroughly reviews every judge and recommends whether or not they should be retained.
In 2010, current Supreme Court Chief Justice Dana Fabe was up for a vote. Fabe was part of the unanimous ruling in 2001. In the final weeks before the election, and armed with $50,000 from Focus on the Family, the evangelical special interest group Alaska Family Action launched a political campaign. They sent out mailers, emails, and sign-waving protesters. One campaign mailer ironically read: “Protect Our Constitution, Vote NO on Dana Fabe.”
She held the seat, but by an atypically small margin.
Her retention is most attributable to the trust the public has in the Judicial Council’s recommendation.
Recognizing this, AFA President Jim Minnery planted a seed in an editorial:

The Alaska Judicial Council, the group created to screen and nominate judicial applicants and evaluate the performance of judges, thinks Justice Fabe should stay because she’s competent, intelligent and she hasn’t had any disciplinary issues. Although these are important issues in determining whether to retain a judge, they have nothing to do with why Justice Fabe should be voted off the bench.

Last year, Minnery launched an identical assault against Superior Court Judge Sen Tan:

Many of those supporting Judge Tan, including the Alaska Judicial Council, claim that Alaska judges and justices should always be retained or approved by the people simply because of their legal/technical competence or because they haven’t had any ethical, legal or moral lapses while on the court. In their view, the people of Alaska shouldn’t be concerned about the actual legal rulings that are made or the judicial philosophies of those up for retention.

So, to review Minnery’s position: legal/technical competence, intelligence, no history of disciplinary actions, no ethical, legal, or moral lapses – these are not appropriate metrics to evaluate a judgeship. Roe v. Wade should serve as our lone compass.
Tan was also was retained, but again by a smaller margin than usual. And the tiny seed Minnery planted in 2010 breached the topsoil.
HB200, sponsored by Rep. Wes Keller (R-Wasilla), was introduced this past session. Kelly sponsored the senate version. The bill removes the Judicial Council’s main function, ordering that “the judicial council may not make a recommendation relating to the retention or rejection of a judge or justice.”
The House Judiciary Committee hosted the sole hearing. Former Chief Justice Walter Carpeneti explained the value of the Council’s work.

The Council literally every year reviews thousands of pages – application, writing samples, surveys of lawyers, police and probation officers, jurors, court employees, social workers, court appointed special advocates in children’s cases report to the independent judicial observers…. The council looks at credit reports. It looks at disciplinary proceedings, both for sitting judges and for lawyers that want to become judges. It looks at criminal records…. It obtains comments from opposing attorneys and judges and litigants. It holds public hearings on every applicant for judicial office and every judge up for retention. It interviews all applicants and any sitting judge about whom questions of fitness for office have been raised.
What this leads to is my conclusion that Alaska does more to evaluate judicial performance than any jurisdiction in the country. And I think that that’s something that we all, and you as the legislature, should be proud of.

The court system, guided by the Council for 38 years, has been largely free of corruption and scandal – an oddity in Alaska government. Carpeneti expressed concern that, without its services, accountability to the public would decrease, and the susceptibility of the public to elect problem judges would increase. This bill, in his estimation, would negatively impact the quality of the judiciary.
It would also bring politics into the courtroom. Without the Judicial Council’s informed recommendations on retention votes, a judge would be defenseless against a last minute, well funded ambush campaign by groups like AFA (who, coincidentally, testified in favor of the bill). This bill would increase the likelihood that retention votes would become more like legislative races, with judges raising money and campaigning.
That doesn’t reward you with better judges, it saddles you with bad politicians.
In his most recent book, former Alaska Attorney General John Havelock described his views on the court: “Judges are supposed to be isolated from the passions of the moment that drive public elections, so that they can deliver dispassionate justice.”[2]
That’s how the current system works. But legislators who feel the need to “stand up for [their] branch of government,” who are looking to rake in campaign contributions from groups like AFA, while doggedly trying to outlaw abortion, don’t have to care.
McConahy’s court order might have escalated Kelly’s quest for the magical supremacy he wrongly believes the legislature has over the judiciary. And he has a whole session to dole out his revenge.
1. Staff. “OPINION.” Anchorage Daily News (AK) 16 Apr. 2001, Final, Metro: B4. NewsBank. Web. 2 Jun. 2013.
2. Havelock, John. Let’s Get it Right. Anchorage, AK: Alaska Legal Publishing Co., 2012. Print.