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Bill would bar council from evaluating sitting judges

Richard Mauer
Richard Mauer

JUNEAU -- A bill sought by social conservatives to muzzle the Alaska Judicial Council by forbidding it to make recommendations on whether a judge should be retained was strongly opposed by a retired Supreme Court Justice at a legislative hearing Wednesday.

"Alaska does more to evaluate judicial performance than any jurisdiction in the country," said Walter Carpeneti, who served as chief justice from 2009 to 2012. "That's something that we all, and especially you as the Legislature, should be proud of."

House Bill 200, introduced by Rep. Wes Keller, R-Wasilla, and its identical twin, Senate Bill 76, introduced by Sen. Pete Kelly, R-Fairbanks, would strip the council of its authority to recommend the retention or rejection of a sitting judge. That authority was granted by the Legislature in 1975.

The bills stem from the 2012 election, when social conservatives tried to oust longtime Anchorage Superior Court Judge Sen K. Tan.

Jim Minnery, of Alaska Family Action, said in the days just preceding the election that Tan should be defeated because he twice struck down laws that said girls had to get parental consent for an abortion. Tan also threw out a law that ended state funding for abortions sought by low-income women. His decisions were upheld by the Alaska Supreme Court.

Tan was one of the Judicial Council's top-rated judges, and the council voted unanimously to support him. The council's executive director, Larry Cohn, said at the time that he was appalled by Minnery's last-minute campaign and authorized state money to be spent on newspaper advertisements endorsing the judge.

The council's right to advertise had been approved by both courts and the Alaska Public Offices Commission, but the ads supporting Tan generated a backlash still felt in the Legislature.

In addition to taking away the council's longstanding duty to make retention recommendations, the bills also prevent it from spending state money to influence an election.

Cohn has already pledged he wouldn't advertise in response to an attack on a judge, but told legislators in an email Feb. 14 that he still intended to buy ads to "publicize our recommendations, to provide reasons for the recommendations, and to publicize information about our evaluation process."

Keller's and Kelly's bills were introduced less than a month later. The first hearing on either bill was Wednesday at the House Judiciary Committee, which Keller chairs.

Alaska Family Action lobbyist Michael Pauley of Kenmore, Wash., told the committee that the Judicial Council exerted "improper influence" by advertising before an election. He also said that among the methods for selecting and evaluating judges in the 50 states, "the Alaska process is highly unusual."

Another supporter of the bill, retired attorney Robert Flint, criticized the council's "one-sided public funding."

But Flint acknowledged that the council was different by design, set up in the Alaska Constitution to keep "politics out of judicial selection." Now, he said, it's apparent to him that the Constitution overcompensated "by largely removing the public from the control of their own government."

Rep. Charisse Millett, R-Anchorage, suggested the system wasn't working.

"We still seem to have evolved to a lot of more liberal or progressive judges in positions now than moderate or right-leaning judges. Is that a fair statement?" she said asked Flint.

"I think that's correct -- that's where the complaints have come from," he said.

Cohn, speaking by teleconference, said the council jumps in to support highly rated judges facing opposition because the judges themselves generally don't campaign.

Keller, the committee chairman, asked Cohn if the council could add an evaluation category and rate judges on their "judicial philosophy."

Cohn said that would be a bad idea.

"We wanted judges to do what the law requires, not necessarily what their personal beliefs are or even what the will of the people might be," Cohn said. "Not too long ago, the will of the people would have been in favor of slavery or discrimination of one kind or another."

Instead, he said, the council looks for judges who are fair and neutral. "When you and people that are important to you go into court to have these people decide what's really important in your life -- where your kids are going to be, a decision affecting your property or your liberty -- that they do it without regard to any judicial philosophy and without regard to any personal beliefs and follow the law as best they can."

Carpeneti said the council's recommendations on retention keep the judiciary healthy.

"The council serves a critical function of letting the voting public know when a judge is not performing the way he or she should," he said. "The public should know very clearly when a judge is not fit for the bench."

Keller said he wouldn't try to move the bill out of committee just yet, but he didn't set a date for another hearing. The legislative session ends Sunday.

The bill doesn't affect the original constitutional purpose of the council, to screen judicial candidates before sending approved names to the governor to choose whom to nominate.

Reach Richard Mauer at or in Juneau at (907) 500-7388.

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