August 19, 2005
Friday

ANCHORAGE, Alaska - A rule barring state judges from expressing opinions on controversial issues outside the courtroom is unconstitutional, according to a ruling issued by a federal judge in Anchorage.

The decision, spurred by an anti-abortion group, comes on the heels of similar rulings and changes considerably the limits on Alaska judges' interaction with special interest groups - at least for now.

The ruling stems from a 2004 lawsuit brought against the state by Alaska Right to Life. According to Will Sherman, an attorney and board member for the group, Alaska Right to Life asked judges in a questionnaire before the 2002 election to take a position on abortion. Some judges wrote back that they would if they could but their code of ethics didn't allow it, Sherman said.

The group's political action committee sued the state in U.S. District Court, claiming the rule improperly limited a judge's right to free speech under the First Amendment. No judges joined the suit.

The Alaska Judicial Conduct Commission, which monitors judicial behavior, says it is a bad idea for judges to take public stands on political issues because it could result in their being disqualified from handling cases involving those issues.

"The role of the judge is to hear each individual case on its own merits and not prejudge," Marla Greenstein, executive director of the Conduct Commission, said Wednesday. Expressing such opinions publicly is tantamount to prejudging, she said. "It does a disservice to the people that would then come before that judge. They no longer have the confidence that they can hear that case with a fresh mind."

But Sherman said prohibiting judges from talking doesn't keep them from having opinions - and voters ought to have a clear shot at asking them where they stand. They are elected, after all, he said.

Not exactly, Greenstein said. State judge applicants in Alaska are vetted through the Alaska Judicial Council, which sends two or more nominations to the governor, who then makes an appointment.

A few years after taking office, the judge is put on a regular retention schedule, where, depending on which type of court they serve, their name goes on the ballot every four, six, eight or 10 years, with a simple yes-no question to voters: Should this person be retained?

"It's not like they're running against another person. They're running against their own record," Greenstein said.

She added that the state puts out a plethora of information about the judges for voters to read. Political groups are welcome to investigate the records of the judges.

"Many of our judges would not have sought judicial office if they had to run a campaign," Greenstein said. "They are not politicians."

In his July 29 decision, released earlier this month, U.S. District Judge Ralph Beistline, a former state judge in Fairbanks, said the rule prohibiting judges from announcing their views on disputed political, legal and social issues "impermissibly burdens free speech and violates the First Amendment."

"In reaching this decision," Beistline wrote, "the Court wishes to make clear that there is nothing . . . that requires any judge standing for retention to respond to any questionnaires or surveys. Indeed, there may be good reason not to do so, but this is a matter that is better left to the sound discretion of each judge."

Sherman said Wednesday that Alaska Right to Life, which claims 50,000 members, is thrilled about the decision. Similar rulings have been handed down in three other states, he said. A law firm in Indiana guided all four of the lawsuits, Sherman said.

The firm could not be reached Wednesday because it was closed.

On Tuesday, the Judicial Conduct Commission, which is composed of three state court judges, three seasoned Alaska lawyers and three public members, asked the Murkowski administration to appeal the ruling. The Department of Law is reviewing the request, according to a spokesman, who said a decision should be made in the next month.

Sherman said Alaska Right to Life has not sent questionnaires to judges since the 2002 election because of the lawsuit.

"I can pretty much guarantee we'll do it in 2006," he said.

Whether any judges answer is another question. Greenstein said her hope is that judges will continue to do what they did under the old rule: not take public stands.

Sherman said it is a judge's decision whether to answer the Right to Life survey, which in 2002 asked questions like whether the judge believed Roe v. Wade was wrongly decided, and where the judge stood on abortions in cases of rape and incest and where birth might result in death of the mother.

"I don't think anyone is going to be tarred and feathered if they don't answer a question," Sherman said of his group's upcoming questionnaire. "The beauty is they won't be tarred and feathered now if they do."

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