For most of Alaska’s history, judicial retention elections have been sedate affairs.
Alaskans have almost always voted to keep appointed judges on the bench. Grassroots opposition groups have run campaigns against judges only a few times, and have succeeded in removing a judge twice.
These days, judicial retention elections aren’t so quiet.
Alaska Supreme Court Justice Susan Carney is facing an organized campaign against her retention this fall, amid tension with Alaska’s executive branch over a larger conservative goal of dismantling the state’s system for selecting judges.
The Alaskans for Judicial Reform — Vote No on Susan Carney campaign kicked off Monday with a 40-person rally in front of the Nesbett Courthouse in Anchorage. The group cites a 2019 ruling on abortion, among other issues, as reason to remove Carney.
“She is an activist judge,” said campaign spokeswoman Windy Perkins.
The Alaska Judicial Council unanimously voted to recommend Carney be retained. Carney, who lives in Fairbanks, was appointed to Alaska’s highest court in 2016 after a nearly three decade career as a lawyer for the Alaska Public Defender Agency and Office of Public Advocacy. She has her own website and Facebook page defending her record.
‘You vote them out’
Judges have faced occasional ouster challenges over the years, said Walter “Bud” Carpeneti, a former chief justice of the Alaska Supreme Court and a board member of Justice Not Politics Alaska, which advocates for keeping Alaska’s current judicial selection system.
“There have been individual campaigns mounted against judges over the years, but not a lot,” Carpeneti said. “What’s new is that there is more organization.”
Conservative groups are taking a more active role in encouraging Alaskans to vote out individual judges because it’s the one thing they can do under the current system, said Robert Flint, a retired Anchorage attorney who is part of the statewide leadership committee of Alaskans for Judicial Reform.
“If we are accusing people of legislating from the bench, well, what do you do with legislators you don’t like?” said Flint. “You vote them out.”
The ultimate goal is much bigger, Flint said: Do away altogether with the Alaska Judicial Council, the constitutionally enshrined system that Alaska has used for selecting judges since statehood.
The director of the council says the council selects and recommends judges for retention based on an extensive investigation of their merit and performance.
“To vote Carney out to send a message that we don’t approve of the judicial selection process — I would refer back to the constitutional convention — the people who worked so hard to set up this system that achieves a balance between the elective and appointive who were so concerned about getting best qualified people into these positions,” said Susanne DiPietro, the executive director of the Alaska Judicial Council.
The judicial fights are happening during a time of open conflict between Alaska’s Republican Gov. Mike Dunleavy and the judiciary: In 2019, Dunleavy refused to select one of the candidates recommended by the Alaska Judicial Council for a Palmer Superior Court position, saying the candidates sent to him were “inadequate.” He eventually chose Kristen Stohler a month after the appointment was due.
The same year, Dunleavy vetoed $335,000 from the budget of the Alaska Court System over the state Supreme Court’s rulings on abortion, a symbolic amount his administration said equaled the amount spent by the state funding elective abortions.
Defenders say the Alaska Judicial Council system puts merit over politics in selecting judges.
“We should keep it because it’s the best system in the world for finding people who will be good judges,” said Carpeneti.
The “Missouri Plan,” as Alaska’s system is known, works on three levels, Carpeneti said: The Alaska Judicial Council, made up of three lawyers and three non-lawyer community members with a tiebreaking vote by the Alaska Supreme Court chief justice, selects the most qualified candidates and sends a list to the elected governor, who then makes a nomination. Then, after a few years, voters get to decide whether to keep the judges — or not — through retention elections.
“It takes into account everything you want to get and really minimizes the role of politics in judicial selection,” he said.
Many states do it differently, with aspiring judges running partisan or nonpartisan political campaigns, complete with fundraisers and donors. Other states allow governors to choose judges or have a version of the nominating council Alaska uses, but few have as fully a “merit based" system as Alaska, Carpeneti said.
Conservatives see themselves as disenfranchised by Alaska’s system, said Flint. They have long asserted that the system puts too much power in the hands of un-elected lawyers on the Alaska Judicial Council. As a state senator, Dunleavy pushed for a constitutional amendment that would have changed the makeup of the Alaska Judicial Council, joining other conservative lawmakers.
“It’s too far from the democratic process,” Flint said. “I think there are perfectly well-qualified candidates on the conservative side that don’t get sent up, don’t get nominated."
Carpeneti points out that half of the judicial council is made up of non-lawyers. Right now, the non-lawyer members include former Anchorage Police Department officer and pastor Dave Parker, Loretta Bullard of Nome, a retired Kawerak Inc. executive, and Lynne Gallant, an Anchorage nurse.
Rulings and campaigns
Anti-retention campaigns have almost always targeted judges who have made controversial rulings on abortion, such as Anchorage Superior Court Judge Sen Tan in 2012 and Alaska Supreme Court Justice Dana Fabe in 2010. Both judges ended up keeping their jobs.
In 2018 Anchorage Superior Court Judge Michael Corey became the first judge ousted by an uprising of voters angry over his role in approving a controversial plea agreement in the case of a man who choked and sexually assaulted an Alaska Native woman but got no additional jail time. The Alaska Judicial Council had recommended he be retained before the controversial plea agreement.
The current campaign against Carney cites her rulings in three cases as examples of the judge “legislating from the bench”: A 2019 Alaska Supreme Court opinion that found a law that restricted state Medicaid funding for “medically necessary” abortions would violate constitutional equal protection guarantees.
In another case, the Alaska Supreme Court found that not giving sex offenders who had completed their sentence and treatment an opportunity to prove they were no longer a danger to society and should be removed from a statewide registry violated their right to due process.
The group also cites a 2017 case in which the Alaska Supreme Court ruled that the governor had the legal authority to exercise veto power over dividend payments.
Ethical rules preclude judges from campaigning for themselves unless and until an organized campaign is actively campaigning against them. Carney’s website says she’s paying for associated costs herself.
As of Oct. 4, Alaskans for Judicial Reform had registered as an independent expenditure group but had not filed any income or expenditure reports. The reports aren’t due until ten days after money is first spent by a campaign.