Silence at a Price? Judicial Questionnaires and the Independence of Alaska's Judiciary

• Publication year: 2008

§ 25 Alaska L. Rev. 303. SILENCE AT A PRICE? JUDICIAL QUESTIONNAIRES AND THE INDEPENDENCE OF ALASKA'S JUDICIARY

Alaska Law Review
Volume 25, No. 2, December 2008
Cited: 25 Alaska L. Rev. 303

Silence at a Price? Judicial Questionnaires and the Independence of Alaska's Judiciary

Kelly Taylor ^[*]

ABSTRACT

The Alaska judiciary is constitutionally designed to be relatively independent of partisan interests: judges are selected through a merit-based process in which they are evaluated based upon their competence and qualifications. In the months before Alaska's 2002 and 2008 judicial retention elections, the anti-abortion organization Alaska Right to Life sent judges questionnaires seeking to pin down their views on controversial legal and political issues. This Note explores the use of partisan judicial questionnaires in the context of Alaska's merit-based system of judicial selection. In doing so, it explores past partisan campaigns against Alaska judges and devotes much attention to Alaska Right to Life Political Action Committee v. Feldman. At issue in Feldman was whether provisions of the Alaska Code of Judicial Conduct prohibited judges from answering Alaska Right to Life's 2002 questionnaire and, if so, whether the provisions thereby violated judges' First Amendment rights.

TABLE OF CONTENTS

INTRODUCTION........................................................ 304 I. THE CULTURE OF ALASKA'S JUDICIARY.............................. 306 A. Judicial Selection According to Merit....................... 306 B. Alaska Code of Judicial Conduct............................. 309 II. POLITICIZING JUDICIAL RETENTION ELECTIONS AND ALASKA RIGHT TO LIFE POLITICAL ACTION COMMITTEE V. FELDMAN............ 310 A. Previous Organized Attacks on Judges........................ 311 B. The Alaska Right to Life Judicial Questionnaire............. 315 C. Alaska Right to Life Political Action Committee v. Feldman.. 318 III. CHALLENGING JUDICIAL CANDIDATE SPEECH RESTRICTIONS ON FIRST AMENDMENT GROUNDS........................................ 319 A. Republican Party of Minnesota v. White and the Constitutionality of the "Announce Clause" in an Election System of Judicial Selection....................... 320 B. Reactions to White.......................................... 323 C. The Nationwide Effort to Politicize Judicial Elections...... 325 IV. CONSTITUTIONALITY OF ALASKA'S RESTRICTIONS ON JUDICIAL CANDIDATE SPEECH AFTER WHITE................................... 327 A. Ripeness and Standing Hurdles............................... 328 B. Judicial Candidate Speech Restrictions in a Merit-Based System of Judicial Selection............................... 330 C. Constitutionality of Alaska's "Pledges and Promises Clause" and "Commit Clause"................................. 332 V. MAINTAINING JUDICIAL INDEPENDENCE IN ALASKA.................... 337 A. Culture of the Judiciary and Merit-Based Selection Revisited................................................... 338 B. Recusal and Judicial Disqualification as Remedies........... 339 CONCLUSION.......................................................... 342

INTRODUCTION

In September 2002 and, again, in September 2008, Alaska judges running for retention received questionnaire packets soliciting their views on disputed legal and political issues. The questionnaires, sent by Alaska Right to Life (AKRTL), sought the judges' views on issues such as abortion and euthanasia. As AKRTL explained, it planned to publicize the judges' responses to the questionnaire and, based on those responses, issue recommendations as to whether each judge should be retained.

Of the sixteen judges who received the 2002 questionnaire, only four responded and none answered any of the questions. ^[1] Blaming the Alaska Code of Judicial Conduct for the judges' demurral, AKRTL filed a lawsuit in 2004 challenging three of the Code's provisions ^[2] --the "pledges and promises clause," ^[3] the "commit clause," ^[4] and the "recusal clause." ^[5] Basing its claims on Republican Party of Minnesota v. White, ^[6] a United States Supreme Court decision invalidating the "announce clause" of the Minnesota Code of Judicial Conduct on First Amendment grounds, AKRTL argued that provisions of the Alaska Code likewise violated judges' First Amendment rights by forbidding judges to answer the questions contained in its questionnaire. ^[7] Because the Ninth Circuit eventually dismissed AKRTL's lawsuit on ripeness grounds, ^[8] it is still an open question whether the relevant provisions of the Alaska Code will survive after White. AKRTL's questionnaire and lawsuit also raise a broader issue: when a state has designed its judicial selection system to be as nonpartisan as possible, as Alaska has, how should it handle interest groups' efforts to politicize that system?

This Note explores the issue of judicial questionnaires in Alaska. Part I discusses the culture of the Alaska judiciary. Part II describes past attacks on Alaska judges and, against this background, tells the story of Alaska Right to Life Political Action Committee v. Feldman. Part III focuses on the White ruling, including lower courts' interpretations of it, and Part IV considers, in light of White, the constitutionality of Alaska's judicial speech restrictions. Recognizing that Alaska's judicial speech restrictions could be invalidated, Part V explores ways of maintaining judicial independence and nonpartisanship in Alaska without those restrictions.

I. THE CULTURE OF ALASKA'S JUDICIARY

Although the Alaska Constitutional Convention briefly discussed possible benefits of electing judges, ^[9] delegates placed too great an emphasis on judicial independence to adopt an election system of judicial selection. As Judiciary Committee Chairman George McLaughlin warned, the judiciary in an election system is "dictated and controlled by a political machine." ^[10] Delegate Edward Davis, citing experiences in Idaho, cautioned that an elected judge is retained or dismissed "completely irrespective of qualifications." ^[11] Concerned with minimizing the influence of politics on Alaska's judiciary, the Convention voted by an overwhelming majority to adopt a merit-based system of judicial selection. ^[12]

A. Judicial Selection According to Merit

Pursuant to the Alaska Constitution, judicial selection has three steps. First, the Alaska Judicial Council ("Council")--comprised of three non-attorneys appointed by the governor, three attorneys appointed by the Alaska Bar Association, and the Chief Justice of the Alaska Supreme Court--evaluates judicial candidates and nominates at least two for each vacancy. ^[13] Second, the governor fills the judicial vacancy by appointing one of the Council's nominees. ^[14] Finally, Alaska judges stand for retention at the first election held more than two or three years after their initial appointments and, after that, at various intervals depending on the court on which they sit. ^[15]

The Council's judicial nomination process is intentionally nonpartisan in its information gathering procedures and evaluative criteria. ^[16] The Council's initial evaluation of each judicial applicant includes background checks, public comment, an extensive interview of each candidate, and surveys of the Alaska Bar Association. ^[17] Other nonpartisan considerations include the applicant's pro bono and community service; counsel questionnaires, which are completed by attorneys involved in the applicant's most recent cases that have gone to trial; signed bar survey comments; and reference letters. ^[18] The Council does not consider an applicant's political or religious beliefs. ^[19]

Based on this information, the Council then evaluates each judicial applicant's qualifications--both on her own merits and relative to other judicial applicants for the same position--using seven nonpartisan criteria of professional competence: communication skills; integrity; fairness; temperament; judgment including common sense; legal and life experience; and demonstrated commitment to public service. ^[20]

Alaska's retention elections are also designed to insulate judges from most partisan politics. ^[21] The judges' political affiliations, if any, are not publicized, ^[22] and judges are usually not permitted to campaign. ^[23] Alaska's retention elections are also non-adversarial; a judge standing for retention runs against no one and if not retained, his vacancy is filled by a new merit-selection appointee. ^[24] Rooted in the notion that judges' professional competence and integrity are of paramount importance (and are not correlated with their personal politics), this design encourages voters to weigh judges' qualifications rather than party affiliation. Before each retention election, the Alaska Judicial Council conducts an evaluation of each state judge standing for retention and publicizes that evaluation, along with the Council's recommendation for retention or non-retention, at least sixty days before the election. ^[25] Like its nominations, the Council's retention evaluations and recommendations are based on nonpartisan criteria related to judges' qualifications and competence. ^[26]

B. Alaska Code of Judicial Conduct

The Alaska Code of Judicial Conduct ("Alaska Code") establishes the standards for ethical conduct of Alaska judges and, in so doing, aims to maintain judicial integrity and independence. ^[27] To this end, the Alaska Code contains both a "pledges and promises clause"...