Retaining Justice

By Dave Donaldson

Article Four of Alaska’s Constitution requires that every judicial appointee stand for a public vote – approving or rejecting the judge for retention on the bench.  A judge faces the retention vote every six years,  a justice of the Supreme Court, every ten years.

This year,  Justice Dana Fabe faces an organized, well-financed campaign to remove her from her seat on the state Supreme Court.  Fabe has served fourteen years on the Court – six as Chief Justice.

But opponents are pointing to six decisions she and other justices have made that are fueling their efforts.

The attack on the court system came as a surprise to many in the state’s legal community.   Organized by the Alaska Family Council’s president Jim Minnery,  it focuses on six Supreme Court decisions that involved Fabe – either as a voting member or as author.  Minnery calls her “radical” – although some of those decisions were unanimously approved by the five-member court.  Minnery points to a philosophy based on moral interpretation.

There really are two different judicial philosophies, just like there’s two different philosophies politically when it comes to what Democrats and Republicans believe or what Conservatives and Republicans believe.  It’s the same thing with the Judicial System.

That statement alone is drawing fire from those who work within the Judicial System.   They say that there is not a connection between political philosophy and the integrity of the courts.  Elaine Andrews served twenty one years as a district court and superior court judge before she retired.   She says – quote –  “judges are not legislators” and they should not be subject to special interests.

The public expects them not to be deciding cases based on special interests.  I think the public expects judges to make decisions not looking over their shoulder at who’s coming after them in the next election.   And they expect judges to have the courage to make the right decision based on the Alaska Constitution.

The six cases that Minnery is promoting include a Parental Rights case – where a majority of Supreme Court Justices – not Fabe alone – found unconstitutional the legislature’s law requiring parents to give their consent to a daughter’s abortion.   However, Fabe was later praised – by national pro-life groups — for her role in allowing a constitutional version on the ballot in August that required parental notification.

Of the other five cases,  Minnery attacks Fabe for not being in the minority of decisions.  In one – that required state funded abortions for poor women if they are legal and other services are covered – the decision was unanimous.  Another unanimous decision for which Minnery singles out Fabe involved a hospital’s providing abortions – although Fabe wrote in the court’s order that individuals were guaranteed the right not to participate.

Judge Andrews says sitting in judgment guarantees that half the people involved in litigation will be displeased with a decision.  However, the best anyone can hope for is a fair hearing – and that judicial independence and community diversity is at the heart of a judge remaining in office.

When a court that makes decisions renders a unanimous decision or a majority decision and one judge is singled out as being responsible for that decision – and other justices that have been up for retention have not been attacked – but a woman judge is – it does give me pause for concern that the diversity of our bench along with the independence of our bench is coming under attack.

Minnery says the ballot group – No On Fabe – is ready for a limited political campaign, focusing on talk radio and small newspaper advertisements.  However,  it has the resources for a short, powerful burst if needed – it’s largest donation is fifty thousand dollars from a group called CitizenLink in Denver Colorado.  Like the Alaska Family Council and its political arm Alaska Family Action, No On Fabe has not yet submitted any financial records to the Alaska Public offices Commission.

Judicial Retention votes are near the bottom of this year’s ballot – and a check of election results for the past ten years show that a lot of voters don’t work their way beyond the top questions to be decided. That section might have a larger turnout than would be normally expected in next month’s General Election.


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