Abortion ruling at center of justices’ retention battle

Supreme Court Justices
Alaska Supreme Court Justices Joel H. Bolger, Peter J. Maassen , Craig Stowers and Daniel E. Winfree (left to right), listen as then-Chief Justice Dana Fabe delivers the 2014 State of the Judiciary Address. Bolger and Maassen face judicial retention elections. (Photo by Skip Gray/Gavel Alaska)

Voters will decide whether to keep two Alaska Supreme Court justices on Election Day. Alaska Family Action, which describes itself as focused on advancing biblical principles, opposes retaining the judges. But advocates for keeping the judges say the group’s opposition to the judges could harm the state’s tradition of choosing and keeping judges based on merit.

Alaska Family Action President Jim Minnery said people should vote against retaining Justices Joel Bolger and Peter Maassen based on a 4-1 decision they were part of in July. That ruling invalidated a law requiring doctors — with some exceptions — to notify the parents of minor children who plan to get abortions.

“We think Alaskans should have the final say on this issue,” Minnery said. “And one of the ways to do that is to send a message to the court that they overstepped their bounds.”

Alaska Family Action is the policy arm of the Alaska Family Council. It opposed retaining judges twice before — Supreme Court Justice Dana Fabe in 2010 and Superior Court Judge Sen Tan in 2012 — both because of other abortion-related decisions.

Minnery said opponents of the justices are relying on social media and email to spread the word. He’s drawing on a list of people who supported the parental notification law.

The Alaska Judicial Council recommended voters retain both justices and 31 other judges.

Council Executive Director Susanne DiPietro questioned whether basing retention votes on individual decisions is the best approach.

“Doesn’t it make more sense to evaluate their performance on more objective criteria?” she said. “How hard do they work? How fair are they? Do people, when they go in there and they make their arguments to that judge — whether they won or they lost — do they feel like they heard them, that they got a fair hearing?”

That’s how the council evaluates judges before sending their names to the governor. Eventually, voters can decide if they want them to stay in their posts.

Minnery said the council’s recommendations are just an assessment of the judges’ competence and he thinks voters should use a different standard: whether they agree with their decisions.

“Sure, they’re competent,” Minnery said. “That’s an assumption. Now we’re talking about what kind of decisions they make and how they come to those decisions, based on their judicial philosophy.”

Retired Superior Court Judge Elaine Andrews disagreed with Minnery’s approach. Andrews, who is chair of the Alaska Bar Association’s Fair and Impartial Courts Committee, said basing retention votes on individual decisions could politicize the courts.

“Judges should not be evaluated on a single decision that they make,” she said.

Minnery likened his position on the justices to Hillary Clinton’s statement that she would have “a bunch of litmus tests” for choosing U.S. Supreme Court justices. But Andrews said it’s fundamentally unwise to apply litmus tests to appointing or retaining judges.

“It is against the ethics of a judicial applicant to agree to vote in advance on any matter in a certain way,” Andrews said. “It perverts the entire system.”

Minnery has quoted the Bible in supporting his position on the justices. He said he directed the biblical quotation at Christians, but said you don’t have to bring faith into the issue to oppose the court’s parental notification decision.

Pastor Julia Seymour of Anchorage’s Lutheran Church of Hope joined with other religious leaders to support the justices. She said a vote against retaining them as a vote against the state’s entire judicial selection and retention system.

“It’s important to myself and to the other pastors I signed on with to help people in Anchorage and across Alaska know that there is not only one Christian voice in the city or in the state,” Seymour said.

Regardless of the retention elections’ outcome, Minnery said Alaska Family Action planned to pursue an amendment to the state constitution to require either parental consent or parental notification for abortions.

Andrew Kitchenman

State Government Reporter, Alaska Public Media & KTOO

State government plays an outsized role in the life of Alaskans. As the state continues to go through the painful process of deciding what its priorities are, I bring Alaskans to the scene of a government in transition.

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