EAGLE FORUM ALASKA TEMPLATE Eagle Forum Alaska: Judicial Retention Information

Tuesday, October 31, 2006

Judicial Retention Information

- By Glen Biegel

Why judicial retention matters.

First, what is it? Judicial retention is a periodic opportunity for the public to judge our judges. They are voted on, or ‘retained’, in our regular elections in what has traditionally been an elective ‘non-event.’

Judicial retention matters because the misinterpretation of even a single word in our Constitution leads to overturning supermajorities of legislators and Governors. Our judicial branch was designed to be the least powerful, not the most important. That is no longer the case. Liberalism in all of its forms is not often implemented by our elected legislators. It comes almost exclusively through the courts.

In extreme cases, our judge’s rulings can abuse the will of the people by ignoring even a Constitutional Amendment such as the Marriage act that was passed in 1998. The Marriage Act was disregarded in a recent 5 to 0 decision that recognized ‘same-sex domestic partnerships’ as having the same characteristics as married people, and therefore were eligible for benefits. Read their reasoning:

The Supreme Court Ruling: ACLU vs State of Alaska and Municipality of Anchorage (S-10459)

“This case requires us to determine if it is reasonable to pay public employees who are in committed domestic relationships with same-sex partners less in terms of employee benefits than their coworkers who are married.”

Many same-sex couples are no doubt just as “truly closely related” and “closely connected” as any married couple, in the sense of providing the same level of love, commitment, and mutual economic and emotional support, as between married couples, and would choose to get married if they were not prohibited by law from doing so.
There are no references to ‘committed domestic relationships’ or ‘same-sex couples’ in current Alaska law. They are constructs exclusively of the Alaska State Supreme court. This kind of judicial abuse directly contradicts the marriage amendment:

Section 1.25 - Marriage.

To be valid or recognized in this State, a marriage may exist only between one
man and one woman.
The courts may not grant the benefits of marriage by equating another relationship to marriage. That is specifically rejected in the amendment. Whether you call another relationship a ‘same-sex couple’ or a ‘committed domestic relationship with same-sex partners,’ our Constitution does not allow the courts to equate them to marriage.

The following is the list of judges who are up for retention. While none of the Supreme Court justices are up, that does not mean that the great disparity between public opinion and judicial action cannot be addressed.

Relevant Opinions:

Superior Court - First Judicial District

Judge Larry Weeks
Court of Appeals Nos. A-8663/8664
Trial Court Nos. 1JU-02-1077 CR
1JU-02-1509 CR

O P I N I O N: [No. 1987 - June 17, 2005]

In this case, the sentencing judge did not specify during his remarks at sentencing whether the defendants sentences were concurrent or consecutive. We hold that, under former AS 12.55.025(e), when a sentencing judge does not specify whether a defendants sentences are concurrent or consecutive, the sentences must be deemed concurrent.

Judge Larry C. Zervos
Sexual Assault of Children – Lenient
A deaf man in Juneau, Alaska was sentenced to eight years in prison after admitting to molesting two girls when they were children. Arley Dominguez, 48, “hugged his wife, smiled and waved his shackled hands at other family members” as he was led out of court last Friday, reported the Juneau Empire. Assistant Public Defender Eric Hedland said his client accepted guilt in the case ever since he was charged in November with eight felonies. “He was willing to take his lumps,” said Hedland. Sitka Superior Court Judge Larry Zervos placed Dominguez on probation for 10 years after his release and ordered him to register as a sex-offender and participate in sex-offender treatment arranged by the Department of Corrections.

Superior Court - Second Judicial District

Judge Richard H. Erlich

Judge Ben Esch
Bad Judgement – Sexual abuse of a minor
Judge reinstates civil suit against diocese
FAIRBANKS - A judge in Nome reversed himself and now will allow a civil case involving allegations of abuse by a priest to go forward. Superior Court Judge Ben Esch in February dismissed the suit against the Fairbanks Catholic Diocese and the Society of Jesus brought by a woman identified in court documents as Jane Doe 2.

Superior Court - Third Judicial District

Judge Joel Bolger

Judge Harold M. Brown
Kenai 04/08/96
Bad Judgment
Court of Appeals No. A-8809
Appellant, ) Trial Court No. 3KN-03-478 CR
) [No. 5114 — September 13, 2006]

Superior Court Judge Harold M. Brown granted a motion to suppress McCurdy’s statements, including evidence of McCurdy’s conduct pointing out the location of the single packet of heroin. However, citing Smith v. State,5 Judge Brown concluded that the heroin would have been “inevitably discovered based solely on information known to the police[,] and [the heroin was] not subject to suppression.”

Judge Charles T. Huguelet

Judge Peter A. Michalski
Judge Michalski is probably bestknown for his 1996 court decision finding that homosexual partners areentitled to be "married". Alaskan voters apparently disagreed as we votedoverwhelmingly to uphold traditional one man- one woman marriage. Judge Sen Tan ruled in 2000 that the state must pay for convenienceabortions for poor women. His rationale was that if the state was going topay for prenatal (well-baby) care for these women, they must also fund abortions.

Judge William F. Morse
Judicial Elitism
On July 28 Superior Court Judge William Morse determined that Superior Court Judge Michael Jeffery (Barrow) and District Court Judge Nancy Nolan (Anchorage) had timely filed their notices of intention to run for retention on the November 2004 ballot despite the undisputed fact that both judges submitted their declaration of candidacy forms to the Division of Elections over two weeks after the filing deadline, with the request that the Division accept them late. Under Alaska law the notice to file must be made by August 1st before the general election. In addition, the Alaska Supreme Court has held that the Division of Elections has no discretion to accept a late-filed declaration of candidacy, and that the Division must strictly construe the statute requiring this filing. However, in Jeffrey v. Glaiser and Nolan v. Glaiser the court said that the Division of Elections abused its discretion by refusing to put the names of judges on the ballot.

Even though the Division of Elections provides a declaration of candidacy form, Judge Morse determined that Judges Jeffrey and Nolan fulfilled the filing requirement when a Judicial Council employee sent an email containing the addresses of the judges eligible for retention, without their knowledge, to a temporary employee at the Division of Elections whose job was to coordinate the ballot pamphlet sent to Alaska voters. This Elections employee then mailed the judges information about how to submit ballot pamphlet materials, along with a reminder that they were required to file their declarations of candidacy by August 1. The Judicial Council employee also later sent a reminder to the candidates, stating that if they failed to file a declaration of candidacy with the Division of Elections by August 1, their names would not appear on the ballot.

“The Division of Elections is charged with running a fair election, and this requires clear rules that the public understands,” said Márquez. “The superior court decision recognizes that there are concrete deadlines for filing declarations of candidacy for any office, but establishes ambiguous standards for what constitutes a declaration by a judicial candidate. The burden that this decision places on the Division combined with the importance of the legal issue compels us to seek review by the Alaska Supreme Court.”

Judge Eric Smith

Judge John Suddock
Fathers Rights
Supreme Court No. S-11269
Superior Court No. 3AN-92-2426CI
[No. 5918 - July 1, 2005]

On May 13, 2003, James Ray filed a pro se superior court motion seeking a change of custody, support, and visitation, a combined affidavit and memorandum, and a proposed order. His motion asked the court to stop all child support for C.R. retroactive to the date of the divorce and stated that C.R. was not his biological or adopted son. James alleged in his motion that he had not been given visitation rights as court- ordered and that he had been allowed to see C.R. only three times since the divorce. His supporting affidavit and memorandum alleged that C.R. was included in the divorce order because it had been determined that there was an existing father-son relationship. Jamess affidavit also stated that the father-son relationship was stopped when [C.R.s mother] left the state within a week of divorce and never allowed me visitation with [C.R.].

Judge Sen K. Tan
Abortion, public funding, parental consent
Planned Parenthood of Alaska et al. vs. State of Alaska. In 2003, Judge Sen Tan struck down a law that required young women under the age of 17 to obtain the consent of a parent or a judge before having an abortion. Tan ruled that the law violated teens' rights to equal protection under the state's constitution because it requires them to involve a parent only in their decision to have an abortion, not in other medical decisions such as carrying a pregnancy to term.

Judge Fred Torrisi
English Language

Judge Philip R. Volland
Judgement Ralph Inga convicted of sexual assault on incapacitated woman. Ralph Inga was tried for sexual assault in the second degree with an incapacitated person and was found guilty by a jury before Judge Michael L. Wolverton Anchorage 12/04/96 Leniency

Judge Volland did not admit the evidence that the defendant had previously engaged in sexual abuse of the same person and did not even admit evidence that the defendant was on probation and was not supposed to have any contact with the victim.

Judge Michael L. Wolverton
Downtown shooting, known gang member charged with first-degree assault and misconduct involving weapons. Wolverton approved a known gang-related third-party custodian over the state's objections. Police later could not reach the defendant, and surprise, the custodian was absent. He was later spotted and ran until he was tackled by an officer. He was carrying a stolen .40-caliber Glock.

In another case, Mark Elkins cut off another car in fit of road rage, causing that other vehicle to rollover, killing the driver and fracturing the skull of her son. Wolverton's sentenced Elkins to 12 weeks in jail after pleading no contest to leaving the scene of the accident.

Superior Court - Fourth Judicial District

Judge Leonard R. Devaney, III

Judge Randy M. Olsen

Judge Mark I. Wood

District Court - First Judicial District

Judge Kevin G. Miller

District Court - Third Judicial District

Judge Brian K. Clark

Judge William L. Estelle

Judge Gregory Louis Heath

Judge David S. Landry

Judge John R. Lohff

Judge Gregory Motyka

Judge Sigurd E. Murphy

Judge Stephanie Rhoades
Leniency, See Wolverton

Judge Jack W. Smith

Judge John W. Wolfe

District Court - Fourth Judicial District

Judge Winston S. Burbank

Judge Jane F. Kauvar
Drug Leniency
) Court of Appeals No. A-
Trial Court No. 4FA-01-3003 CR 1897 August 29, 2003

The question presented in this case is whether AS 11.71.060(a) is constitutional to the extent that it prohibits possession of marijuana by adults in their homes for personal use.

On one level, the answer is straightforward. The Alaska Supreme Court ruled in Ravin that the right of privacy codified in article I, section 22 of our state constitution protects the right of adults to possess marijuana in their homes for personal use. When a statute conflicts with a provision of our state constitution, the statute must give way. Thus, a statute which purports to attach criminal penalties to constitutionally protected conduct is void.


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