Alaska Employment Law

The 9th Circuit this morning held that the Alaska Right to Life PAC did not present a justiciable controversy when it sued members of the Alaska Commission on Judicial Conduct and the Disciplinary Committee of the Alaska Bar Association concerning questionnaires the PAC distributed to Alaskan judges up for retention in 2002. 

Twelve judges or justices were up for retention in 2002.   RTL sent each a questionnaire concerning abortion, assisted suicide, in vitro fertilization and cloning, wrongful life, and wrongful birth.  Four members responded to the questionnaire (Carpeneti, Pengilly, Murphy, and Kauvar), each declining to respond substantively.  They cited, or may have been prompted in part by, an informal letter from AJC Executive Director Marla Greenstein expressing her reservations about the propriety of responding. 

RTL did nothing about the 2002 retention elections, nor did it distribute a questionnaire for the 2004 retention elections.  Instead, it filed a § 1983 action  in federal court, alleging that several Judicial Canons [3E(1) and 5A(3)(d)(i) and (ii)] unconstitutionally chilled protected political speech. 

Judge Ralph Beistline held that the RLT claims were justiciable.  On the merits, he held that Canon 3E(1) was constitutional and that Canon 5A (3)(d) was unconstitutional.  He awarded no fees to RTL (because of its limited success).  He awarded $8,800 in fees to Steven Van Goor, after RTL dismissed its claims against him. 

On appeal, the 9th Circuit (Paez, with Wallace and Noonan) reversed Judge Beistline’s justiciability holding, and remanded for dismissal.  It also affirmed the fee award to Van Goor.  On the justiciability issue, the Court concluded that RTL hadn’t presented a “concrete factual situation” showing any likelihood of an AJC inquiry into judicial conduct, much less a formal investigation or an actual disciplinary proceeding.  The panel discounted the significance of Greenstein’s letter to the judges, noting that it “did not threaten investigation, at most constituted informal guidance, and therefore, under the Commission’s own Rule of Procedure 19(d), had no legal effect.”  Furthermore, even if the Commission had initiated an investigation, the 9th Circuit saw “a strong likelihood that the Alaska Supreme Court would construe the canon to avoid the constitutional concerns.”  While courts may relax justiciability requirements to protect First Amendment values when the plaintiff is in immediate danger of a direct injury, this situation didn’t fall in that exception.  

Alaska Right to Life Political Action Committee v. Feldman, 2007 WL ______, (9th Cir. Sept. 21, 2007). 

Will Sherman of Anchorage was local counsel for RTL.   Jan Hart DeYoung represented the AJC defendants.  Neil O’Donnell of Atkinson Conway represented Van Goor.