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Decision grants judicial council OK to speak out on judges prior to retention elections

Jerzy Shedlock

The state’s Supreme Court issued an opinion Friday stating the Alaska Judicial Council has authority to dole out new information about judges up for retention votes in the three months leading up to an election.

The opinion is the result of a nearly four-year court battle. In October 2010, a handful of voters challenged the constitutionality of the council’s powers to make retention recommendations, as well as its ability to release new information 60 days before an election.

Established in the state constitution, the Alaska Judicial Council is a seven-member nonpartisan panel that screens and nominates candidates for judgeships, evaluates the performance of judges and studies the judicial system.

In 2010, the council recommended voters not retain former Alaska District Court Judge Richard Postma, spending thousands of dollars to advertise its recommendation. The council cited conflicts the judge had with his court colleagues, which it said included abusive communication by email and in person as well as perceived mental health issues, according to an Anchorage Daily News story at that time.

The voters filed their first complaint on Oct. 29, 2010, a few days prior to the election. The retention election occurred and Postma was not retained.

Later, in November 2010, the voters filed another complaint arguing against the extent of the council’s advertising against Postma. They said the council overstepped its authority by engaging in “executive patronage” when it advertised about the judge in the 60 days before the election, according to the Supreme Court’s decision.

The Alaska Superior Court ruled the council may make retention recommendations but issued an injunction prohibiting it from releasing new information in the three months before an election. However, the court allowed the council to release information supportive of judges up for retention.

Now the council is free to advertise and release new information leading up to an election. Alaska Judicial Council Executive Director Susanne DiPietro called the opinion a “very good outcome for the council and the public.”

“I think that the court is recognizing the importance of the council’s public information purpose,” DiPietro said, “and even said that for our evaluations to be effective the information must be disseminated as widely as possible.”

She said the members of the council were notified about the opinion but they have yet to discuss it.

The Alaska Department of Law, in a prepared statement, lauded the Supreme Court’s opinion as well.

“The Judicial Council plays a vital role in educating the public and ensuring that voters have the information needed to decide whether or not to retain a judge,” the statement says. “We are pleased that today the Alaska Supreme Court upheld the Judicial Council’s broad authority to disseminate information and make recommendations regarding the retention of our judges.”

Plaintiffs in the case could not be reached for comment.

Since 1976, the council has recommended non-retention of a judge only 12 times. Seven of those times the voters have nonetheless voted to retain the judge.

Most recently, the council recommended that residents vote against retaining Palmer District Court Judge William Estelle in the coming November general election. It urged voters to say yes to keeping the 13 other judges up for another term in a press release issued in June.

The release said Estelle filed untrue affidavits between September 2011 and February 2013, falsely swearing that he had completed cases within time constraints. State law prohibits judges from being paid if they have undecided cases outstanding for more than six months.