The Alaska Judicial Council has voted to recommend that state voters retain all 19 judges on the November election ballot, but the recommendation didn’t come without dissent.
Meeting Wednesday, two of the council’s six members voted against the recommendation for Judge Adolf Zeman, citing Zeman’s recent ruling on the constitutionality of the state’s allotment system for students in correspondence programs.
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The “no” votes came Kristie Babcock and Denny DeWitt. Both are appointees of Gov. Mike Dunleavy, who as a state senator authored the allotment system that Zeman struck down.
DeWitt, who abstained from voting on all other 18 judges facing retention, said during a meeting before the vote that “there’s a whole broad area of folks, Alaskans, who were disenfranchised unnecessarily and traumatized to a point” by the decision.
“That could have been avoided, in my judgment, and I will be voting against his retention,” he said.
While Zeman was still recommended for retention on a 4-2 vote, council member Jonathon Katcher, an appointee of the Alaska Bar Association, said he was “very concerned” about the idea that the council would make a recommendation based on a single verdict, rather than a judge’s overall record.
“As I understand it, in the history of this body, this council has never taken a position on the retention of a judge based upon his or her decision or decisions,” he said. “And for us to start doing this now, especially on an issue of this emotional intensity is — I just think it’s a dangerous precedent.”
The council’s six members include three public members appointed by the governor and confirmed by the Alaska Legislature. The other three members are selected by the Alaska Bar Association, a system enshrined by the Alaska Constitution, which calls on members to recommend judges based on merit, rather than political leanings.
The constitution also requires regular public votes to determine whether judges should be retained or fired. Before those votes, the council meets to make a recommendation.
If at least four members vote “yes,” the council’s subsequent ads say it has endorsed a particular judge for retention.
If the council splits 3-3, the Alaska Supreme Court’s chief justice — in this case, Peter Maassen — casts the tiebreaking vote.
On Wednesday, that occurred only once, when three members abstained from voting on Herman Walker Jr., forcing Maassen to cast a vote, the fourth in favor of retention.
Though the council considered the suitability of 19 judges, its members spent more time considering Zeman than the other 18 judges combined.
Each judge is the subject of surveys that ask attorneys, police, members of the public and others who work with the judge to gauge their performance.
Those surveys, conducted before Zeman’s ruling on the correspondence issue, didn’t show significant dissatisfaction.
At a May 8 in-person and telephonic hearing, testifiers urged the council to recommend that Zeman stay a judge.
But after that hearing, the council received dozens of emails urging members to reject Zeman for his decision on the correspondence issue.
“I’m disgusted and hope this man will not be retained,” wrote Eleanore Ostler, one correspondent.
DeWitt, speaking to the council, said he feels that the council has historically made judgments based on survey data, “mostly on how lawyers rate a judge,” and that may not be the best approach.
“It seems to me there needs to be a little more input from the public, and that’s what I’m trying to bring,” he said.
Katcher said he’s “sure every member of this council can come up with an Alaska Supreme Court decision that we don’t agree with,” but that basing a recommendation on only one decision risks undermining judicial independence.
Steven Hansen, another bar association-appointed member, noted that Zeman previously ruled in favor of the governor in a dispute over the status of the state’s higher-education investment fund.
That decision, later upheld by the Alaska Supreme Court, included many of the same figures as the correspondence case.
Hansen said that track record shows “that he is able to come to conclusions that favor different sides of the issue and has not been errantly in favor of one side wholly or the other.”
Of the 19 judges on ballots this fall, only Zeman earned two “no” votes. Babcock also voted against the retention of Supreme Court Justice Jennifer Henderson. All of the 17 other judges were recommended by 4-0 votes that saw at least two council members abstain from voting.
On multiple occasions, Babcock said she was voting “no recommendation” because she didn’t have enough experience with or direct knowledge of the judge to recommend them. Those votes were recorded as abstentions because the council’s bylaws don’t allow a vote to be recorded as “no recommendation.”
