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Alaska News

Allies defend Fabe as justice fights campaign to oust her

  • Author:
  • Updated: September 29, 2016
  • Published October 28, 2010

A group of social conservatives is actively campaigning to knock Alaska Supreme Court Justice Dana Fabe off the bench, and some of her friends are quietly fighting back.

Voters will decide Tuesday whether to retain Fabe, 59, on the state's highest court. When then-Gov. Tony Knowles appointed her in 1996, she was the first woman on the court. This year, she's the only justice on the ballot, though voters will have a chance to say "yes" or "no" to a number of Superior and District Court judges as well as an appeals court judge. She's well-regarded by lawyers and court employees in Alaska and is earning a national reputation as a judicial leader, according to colleagues.

But she's facing opposition from organized Christian groups. Alaska Family Action is sending out campaign mailers and firing off e-mails in an effort to educate voters and defeat Fabe, calling her a liberal, activist judge because of rulings on abortion, gay marriage, benefits for same-sex partners of state workers, and prisoner rights.

"Protect Our Constitution," a campaign mailer says. "Vote NO on Dana Fabe."

"It really has nothing to do with how intellectual Justice Fabe is. If she's competent to be a judge. If she's had any disciplinary issues. If she's admired by her peers. That's not the issue," said Jim Minnery, president of Alaska Family Action, the political arm of the anti-abortion, pro-traditional marriage Alaska Family Council.

The opposition to Fabe revolves around philosophical differences, he said.

So far, his group's effort is being funded largely by CitizenLink, the public policy arm of the national Christian group Focus on the Family. It provided $50,000, according to a report Alaska Family Action filed with the state on Monday. But Minnery said other national advocacy groups as well as individuals also are contributing.

Fabe's supporters say she's an excellent judge who makes decisions based on the law and the state constitution.

"She has a 34-year record of being a stellar, brilliant lawyer, judge and justice," said Linda Duck, a longtime friend. "She has an impeccable reputation."

Fabe didn't form a campaign committee, isn't raising any money and isn't speaking publicly about the complaints against her. She didn't want to collect contributions from people who might have cases before her, Duck said. Fabe is spending some of her own money on advertisements, Duck said.

Duck is chairing a small group calling themselves Alaskans for Justice Dana Fabe that includes a few friends and former law clerks. The group created a pro-Fabe website that features endorsements by prominent people and organizations, including former state Public Safety Commissioner Ron Otte, former Gov. Bill Sheffield, state constitutional convention delegate Vic Fischer, U.S. Sen. Mark Begich and the Alaska Federation of Natives.

"Last-minute attacks on her distinguished record put the neutrality of our whole judiciary at risk and undermine the intent of our constitution," Fischer says in his endorsement of Fabe.

THE ABORTION QUESTION

The website also addresses what her supporters call mischaracterizations of her record.

The court rulings being singled out by the Alaska Family Action include a 2007 Supreme Court opinion, authored by Fabe, that struck down a state law requiring a parent to give consent before a teen gets an abortion. Minnery's group says she "Torpedoed Parental Rights." But in the split opinion, Fabe left the door open for a parental notification requirement, a version of which was on the ballot and passed in August. In fact, she cast the deciding vote on the panel of three justices that allowed that ballot measure to go before voters.

"Believe me, my client, Planned Parenthood, was not happy with that result," said Anchorage attorney Jeff Feldman, who had argued to keep the proposition off the ballot. "But they didn't go out as a consequence and start throwing bricks at the court."

Fabe didn't even author all of the opinions, most of them on abortion issues, being criticized, and a number were unanimous decisions, her supporters and colleagues say.

"These are not the rogue musings of a single person who is going off on a fool's errand," said retired Anchorage Superior Court Judge Elaine Andrews.

The criticism that she's "activist" doesn't have much meaning in the legal world, Feldman said.

An activist is "a judge who rules against you," he said. "I've never seen anyone complain about a judge who ruled in their favor."

AN UNUSUAL YEAR

In Alaska, judges are appointed but must face the voters periodically in what are usually staid elections, a simple up or down vote with no opposing candidate to pick from. Supreme Court justices are on the ballot every 10 years. A judge rejected by voters must leave the bench 90 days after the election.

Judges in Alaska and the 38 other states where they must face voters rarely draw organized opposition on retention questions, but this year is different, said Seth Andersen, executive director of the American Judicature Society, an Iowa-based organization of judges and lawyers that tries to improve the judicial system and, among other things, tracks judicial elections.

"Usually it's noncontroversial. Usually you don't have special interest groups and politicians and folks on the left and the right battling it out over retention elections of judges," Andersen said. "That's changed this year."

This fall, Supreme Court justices are facing organized opposition in at least a half dozen states: Alaska, Iowa, Kansas, Florida, Illinois and Colorado.

In past elections, less than 3 percent of judges have lost their seats in a retention election, Andersen said.

Since 1976, when the Alaska Judicial Council began evaluating judges standing for election, only three have been turned out by voters, and all were given unfavorable marks by the council. Only one Alaska Supreme Court justice has lost a retention vote -- Harry Arend in 1964, according to the council.

FABE'S RECORD

For much of the 1980s, Fabe served as chief public defender for Alaska, a position she was appointed to by then-Gov. Jay Hammond. She served as Anchorage Superior Court judge from 1988 to 1996. She served twice as chief justice of the Supreme Court.

"She has been a leader in many ways," said Larry Cohn, executive director of the Alaska Judicial Council, which evaluates judges and judicial candidates. "She's been doing much, much more than just deciding cases."

Fabe received high marks for her legal abilities, impartiality, integrity, temperament and diligence in surveys of lawyers and court employees done for the Alaska Judicial Council: averaging 4.3 out of 5 points from lawyers and 4.6 points from court employees.

In July the council voted 5-0 to recommend that Alaskans vote "yes" to retain Fabe. One member -- Kathleen Tompkins-Miller, the wife of GOP U.S. Senate candidate Joe Miller -- abstained.

Find Lisa Demer online at adn.com/contact/ldemer or call 257-4390.

By LISA DEMER

ldemer@adn.com

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