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Practice of designating visiting judges expired in mid-1980’s;  former Clerk Robert Bacon provides background

[Ed. Note:  See post of 11/15/07 for important corrections and updates to this article.]

For the first 25 years of the Alaska Supreme Court, it was common for a Superior Court judge to temporarily sit on the court to fill a vacancy caused by retirement or recusal.  From 1961 through February of 1987, there were at least 248 such instances, according to Westlaw (using this search: co(high) & pr(#before +20 “superior court judge”).   The appointments  apparently stopped before 1987 (as Mr. Bacon’s comment below indicates), but opinions from panels including earlier-appointed judges continued to be issued for several years.  The Superior Court-influenced opinions peaked in the 1980-1984 period (accounting for 149 of the total in those five years).  Other notable years were 1967 and 1970.  A table of the frequency-by-year is below.

The first Superior Court Judge to so sit was Walter Walsh in State v. American Can Co., 362 P.2d 291 (Alaska 1961).  The last to sit on the Supreme Court was Rod Pegues in Dep’t of Public Safety v. PSEA, 732 P.2d 1090 (Alaska 1987).  The last Superior Court judge to sit on an appellate court was Elaine Andrews, who sat on the Court of Appeals about four years later, in Kosbruk v. State, 820 P.2d 1082 (Alaska App. 1991).   She earlier sat on the Supreme Court while a District Court judge.

I know of no publicly-offered explanation for ending this practice 20 years ago.

The issue is of more than historical interest when the Supreme Court evenly divides in important cases, such as Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002)(constitutionality of non-economic damages cap and allocation of punitive damages), and Barnica v. Kenai Penin. Bor. Sch. Dist., 46 P.3d 974 (Alaska 2002)(waiver of judicial remedy).  Maybe cases where the Court is evenly split, especially when controversial, are exactly the cases where the Court should not designate a pro tem Justice.  In both Evans and Barnica, a fully-constituted Court resolved the issue within several years. 

A table of Superior Court judges and the number of Supreme Court opinions in which they participated follows Mr. Bacon’s comments.

Robert Bacon, former Clerk of the Supreme Court, comments:

I was clerk of the court from 1978-84.  The relevant records (if they still exist) are with the clerk’s office, not with me, so I am relying on memory from more than 20 years ago.  With that caveat, I offer the following:

As I recall, the practice of designating visiting judges was somewhat irregular until, during Jay Rabinowitz’ second term as chief from 1978-81, he decided, at least for orally argued cases, to designate visiting judges whenever there was a vacancy or recusal so there would be a full bench of five for each case.  The practice continued after Ed Burke became chief in 1981.

If I recall the circumstances correctly, the court abandoned the practice in 1983 or 1984.  The immediate occasion was a case that the court decided 3-2 with Justice Dan Moore in the majority.  In a petition for rehearing, it was pointed out that there was some undisputed basis for his recusal which had not been apparent from the briefs (perhaps some connection to his former law firm, even though they weren’t counsel; I don’t remember exactly).  Rather than designating a visiting judge at that stage to be in effect a one-person supreme court and break the tie, the court decided to grant rehearing, vacate the opinion, and issue an unpublished order affirming by an equally divided court with no further explanation.  (The vacated opinion seems to have been expunged from the Westlaw database; I couldn’t find it when I looked today.)

More generally, at the same time the court decided not to designate visiting judges in the future so long as a quorum (3) was available, choosing as a general rule to prefer affirmance by an equally divided court rather than 3-2 decisions with a visiting judge in the majority.  I think you are right that no official announcement was made; they just stopped designating visiting judges.

Ed. note: Mr. Bacon now practices law in Oakland, California.  He is an inactive member of the Alaska Bar.

Pro Tem Judges

on Alaska Supreme Court Panels: 1961-1987

Fitzgerald                                 18

Schulz                                      17

Stewart                                    17

Dimond (as Sr. Justice)            16

Moody                                    16

Cooke                                     15

Hanson                                    14

Lewis                                       14

Sanders                                    14

Blair                                         13

Carlson                                    13

Hodges                                    13

Buckalew                                 10

Rowland                                   8

Shortell                                     8

Carpeneti                                 6

Serdahely                                 6

Souter                                      6

Taylor                                      6

Craske                                     5

Van Hoomissen                         5

Butcher                                    4

Johnstone                                 4

Moore                                      4

Tunley                                      4

Compton                                  3

Cranston                                  3

Cutler                                       3

Davis                                        3

Occhipinti                                 3

Burke                                       2

Ripley                                       2

von der Heydt                          2

Andrews (from Dist. Ct. )         1

Coats (from Ct. of Appeals)     1

Pegues                                     1

Rabinowitz                               1

Singleton                                  1

Walsh                                       1

Note: Dimond undoubtedly sat on more than 16 Supreme Court panels after he retired.  The chart includes only those opinions on which at least one Superior Court judge also participated.

Frequency of Opinons,

 by Year

1961    0

1962    2

1963    0

1964    5

1965    0

1966    0

1967    14

1968    0

1969    6

1970    36

1971    6

1972    1

1972    1

1973    3

1974    5

1975    2

1976    4

1977    2

1978    1

1979    9

1980    18

1981    40

1982    18

1983    53

1984    20

1985    0

1986    1

1987    1