Tuesday, October 16, 2012

Alaska 2012 Judicial Retention: Should Judge William Morse Be Rejected For Intervening In The Anchorage Assembly Midtown Election In 2008?

Update November 7th: Judge William Morse cruised to retention with a 62.7 percent Yes vote. I can live with the outcome; the important thing was I demonstrated that when judges make controversial decisions, they can expect to be held accountable. Interfering in an election is controversial, but most voters apparently decided that Morse's decision was a fluke.

During the general election to be held on November 6th, 2012, Alaskans will be invited to pass judgment on 26 judges up for retention. The Alaska Judicial Council (AJC) published ratings of all the judges up for retention; the ratings for the 2012 election are accessible through this portal. They recommend retention of all 26 judges.

However, I have already recommended a No vote against Third District Court Judge Sen Tan. Former U.S. Senate candidate Joe Miller has also recommended a No Vote against Judge Tan for the same two reasons; he subverted the rights of parents, and he required public funding of abortions. However, there is a second judge whose record warrants further scrutiny and who may also be unworthy of retention: Third District Superior Court Judge William Morse. It dates back to a controversial decision Judge Morse made in March 2008; although quickly invalidated by the Alaska Supreme Court, it may have altered the outcome of an Anchorage Assembly election.

The overall Judicial Council evaluations on Judge Morse show him to be competent, at the very least. Judge Morse grades out best with jurors, peace officers, and social workers, but grades out poorly with attorneys. As a matter of fact, Judge Morse grades out poorly across the board on temperament, with only jurors approving of his courtroom demeanor. But what really causes concern is that back in 2008, Judge Morse intervened in an electoral dispute involving Midtown Assembly candidates Dick Traini and Elvi Gray-Jackson, ruling Traini ineligible for election less than three weeks before the election. Although Morse was overruled by the Alaska Supreme Court before the election took place, Traini had lost enough momentum that he was defeated by Gray-Jackson on election day -- but only by 5.4 percentage points. This leads me to believe that had Morse not intervened, Traini could have won the election.

Why did Judge Morse intervene in the election? It was over the prospect of term limits? Assembly members cannot serve more than three consecutive terms. However, the question arose as to whether or not a partial term qualified as a term for this case. Traini was appointed to the Assembly in 2001 to fill an unexpired term, then was elected in his own right in 2002 and 2005. Anticipating this controversy, Traini sought a ruling from the Municipality before launching his campaign. After consulting with an attorney, the Municipal Clerk ruled that Traini was eligible to run for re-election based upon the interpretation of the Municipal Charter that "term limits" means full three-year terms. So Traini in good faith decided to run for re-election.

However, Dr. Peter Mjos, who "coincidentally" contributed $150 to Gray-Jackson's campaign, decided that a partial term was a full term, and so he filed a lawsuit to get Traini disqualified. You can read Dr. Mjos' complaint HERE. Mjos was assisted by activist lawyer Bruce Bookman, who just as "coincidentally" agreed to press the suit pro bono. Judge Morse agreed with Mjos, and on March 17th 2008, ruled Traini ineligible. Because it was too late to find a replacement candidate, the city immediately appealed the ruling to the Alaska Supreme Court. Traini said the timing of the suit was deliberately intended to torpedo his campaign.

On March 27th, 2008, the Alaska Supreme Court overruled Judge Morse, noting in their written opinion that "In our view there is a presumption in favor of candidate eligibility. In cases where there is a statutory ambiguity as to whether or not a candidate is eligible to run for office, the statute should be construed in favor of eligibility, so long as it may be reasonably so read". Basically, they called the interpretation of the Municipal Charter's language a "tie", and declared that the tie should be broken in favor of the candidate. However, this decision was rendered only five days before the April 1st election, and during the previous 10 days, any momentum Traini may have had was lost. There was never any evidence of collusion between Mjos and Elvi Gray-Jackson, but Elvi had also publicly questioned Traini's eligibility to run.

By the way, the Anchorage Municipal Code has not been changed; Section 4.02(e) still states, "A person who has served on the assembly for three consecutive terms may not be reelected to the assembly until one full term has intervened". "Consecutive" is still not defined as a full term.

In April 2010, Dick Traini was elected to the other Midtown seat on the Assembly. He's currently running against Democrat Andy Josephson for the House District 15 seat, and is considered the favorite. Not surprisingly, Dr. Peter Mjos is listed on Josephson's website as one of his prominent supporters. ProsperityAlaska has an interesting graphic on the two candidates.

On the other hand, in January 2007, Judge Morse made a decision much more in keeping with a judge's proper role, and it deserves to be highlighted as well. In response to a lawsuit filed by Defenders of Wildlife, the Alaska Wildlife Alliance and the Alaska chapter of the Sierra Club to stop the aerial wolf-killing program operating in five areas of Alaska, Judge Morse refused to grant a preliminary injunction stopping the program. Morse said his job was not to give his opinion about the wolf control program, but to weigh the potential for harm to each side and to decide if there was cause to immediately stop the program. Morse decided that if he granted the preliminary injunction, the program would be set back, causing greater harm to the state. So it is possible that Morse's ruling on the Traini case may have been a fluke rather than representative of his judicial philosophy.

Although Judge William Morse's "transgression" is not as serious as those of Judge Sen Tan, when I combine it with his poor ratings on courtroom demeanor, I find that he is questionable for retention. Consequently, I intend to vote No against Judge Morse on election day. Since I do not live in District 15, I have no personal interest in the outcome of that legislative race.

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