Anchorage Daily News

For just the second time in 20 years, the Alaska Judicial Council is advising voters to throw out a state judge.

The council recommends a "no" vote for Dennis Cummings, a state District Court judge in Bethel who faces his first retention test in November's general election. He was appointed to his seat in 2005 by former Gov. Frank Murkowski.

Seven other judges up for retention received recommendations of "yes" from the council, a seven-member citizen commission established by the constitution at statehood.

In announcing its recommendation, the council said it had concerns with Cummings' "lack of impartiality, inappropriate ex parte contact, inability to control the courtroom, inadequate legal knowledge, and lack of candor."

"The judge respectfully disagrees with the council and intends to stand for election," attorney Jonathon Katcher, who represents Cummings, said Tuesday.

Katcher said the "no" recommendation was unexpected. Cummings hasn't decided what, if anything, to do in response to the council's decision beyond staying on the ballot, he said.

The council's action comes about a month after the Alaska Judicial Conduct Commission -- a separate entity from the judicial council -- filed a complaint against Cummings.

The commission claimed Cummings violated court rules by communicating improperly with a witness during a domestic violence trial in March.

In his response to the complaint, Cummings -- a former Anchorage prosecutor -- admitted to misconduct during the trial for speaking to and passing a note to a state trooper who had testified as a prosecution witness. Such private, one-sided communication is called ex parte contact, and the law generally forbids it.

Cummings, in his response, said he meant to send notes to both sides, but the defense didn't get a note until the next day, after the issue of ex parte contact had already come up, according to both the commission's complaint and Cummings' response.

Cummings said he wrote the note after a trooper testified erroneously that a court order did not specifically prohibit the defendant in the case from having contact with his children. The note was meant to let everyone know the court order did prohibit contact, the judge said in his response.

Cummings denied accusations that he later fabricated evidence and misrepresented what happened in his courtroom.

Other factors besides the note passing and alleged subsequent cover-up were considered before recommending a "no" vote, senior staff associate Teri Carns of the judicial council said. She referred further questions to Larry Cohn, the council's executive director, but he was out of the office Tuesday.

The judicial council last recommended a "no" vote in 2006 when David Landry came up for retention as Kenai's District Court judge. Voters sent him packing.

In 1988, the council recommended a "no" vote for Superior Court Judge Karl Johnstone of Anchorage, but voters chose to keep him in office.

Since the council began offering recommendations on judge retention in 1976, it has advised "no" votes 10 times, Carns said. The first five times -- once in 1976, twice in 1978 and twice in 1980 -- the judges were re-elected anyhow. The first time voters and the council agreed was in 1982, when two judges the council advised against lost at the polls.

November's ballot won't note the judicial council recommendations. However, the state-approved voter pamphlets mailed to registered voters will include the recommendations, as will any advertisements placed by the council between now and the election.

Find Beth Bragg online at adn.com/contact/bbragg or call 257-4309.

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