ALASKA JUDICIAL COUNCIL, LARRY COHN, Executive Director of the Alaska Judicial Council, GAIL FENUMIAI, Director of the Division of Elections, and STATE OF ALASKA, Division of Elections, Appellants and Cross-Appellees,
SUSAN KRUSE, DENNY WELLS, JAY HANSON, ALIYSHA MARTIN, VICKI THOMPSON, VICTORIA SHAMP, LISA WELLS, ALLISON L. BISS, DANIEL J. ALPERT, and NANCY D. LEE, Appellees and Cross-Appellants
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Michael Spaan, Judge. Superior Court No. 3AN-10-11796 CI.
Ruth Botstein, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellants/Cross-Appellees.
Stephanie D. Patel, Law Office of Stephanie Patel, Anchorage, for Appellees/Cross-Appellants.
Before: Winfree, Stowers, Maassen, and Bolger, Justices. [Fabe, Chief Justice, not participating.].
In 2010 the Alaska Judicial Council recommended that the electorate not retain a sitting district court judge. Susan Kruse and a handful of other voters  challenged the constitutionality
of AS 22.15.195, which grants the Council power to make such recommendations. The superior court concluded that the statute is constitutional but enjoined the Council from releasing new information about the judge in the 60 days prior to an election. On appeal, we hold that AS 22.15.195 is constitutional and does not limit the Council's dissemination of new information. We thus affirm the superior court's ruling in part but reverse and vacate the superior court's injunction prohibiting the Council's public dissemination of new information in the 60 days preceding an election.
II. FACTS AND PROCEEDINGS
The Alaska Constitution provides that each " judge shall . . . be subject to approval or rejection on a nonpartisan ballot."  The frequency of these retention elections varies for supreme court justices and judges of the court of appeals, superior court, and district court. Relevant to this appeal, a district court judge " shall be subject to approval or rejection at the first general election held more than two years after the judge's appointment" and " every fourth year" thereafter. The Alaska Judicial Council -- which consists of three members of the public, three attorneys, and the Chief Justice of the Alaska Supreme Court -- is tasked with implementing the retention election system. The legislature has delineated these duties in AS 22.15.195, which provides that the Council will " conduct an evaluation of each judge before the retention election and . . . provide to the public information about the judge and may provide a recommendation regarding retention or rejection." Since 1976 the Council has recommended non-retention of a judge only twelve times, and seven of those times the voters have nonetheless voted to retain the judge.
In July 2010 the Council recommended that a sitting district court judge not be retained in the November 2, 2010 election. The Council cited " mental health difficulties" and " constant friction between [the judge] and other judges, court administrators, and court staff." The Council also released the numerical scores of the evaluation of the judge;  the judge was rated as acceptable to good. After the recommendation was released there was extensive media coverage, including a post by a local blogger questioning the recommendation, an opinion piece in the Anchorage Daily News by the Council's executive director, and radio interviews with both the judge and the Council's executive director. The Council also hired a well-known local figure to be its spokesperson for purposes of explaining its recommendation not to retain the judge.
Kruse filed her first complaint on October 29, 2010, a few days prior to the election. The retention election took place on November 2, and the judge was not retained. Kruse filed an amended complaint on November 18, alleging five causes of action, mainly relating to the extent of the Council's
advertising in the judge's retention election, but also attacking the constitutionality of AS 22.15.195, which allows the Council to make recommendations. The election was certified on December 1, 2010, over Kruse's objections. And on December 15, 2010, the judge stipulated, as part of an agreement with the Alaska Commission on Judicial Conduct, that he would " at no time in the future seek or hold a position as a judicial officer in the State of Alaska." 
Kruse moved for summary judgment on her fourth cause of action -- the constitutionality of AS 22.15.195 -- arguing that it conflicts with various sections of the Alaska Constitution. In the alternative, she contended that the Council exceeded its statutory authority by engaging in " executive patronage" and by releasing information about the judge in the 60 days before the election. The Council filed a cross-motion for summary judgment, arguing that the constitutional challenge was moot and, if not, the Alaska Constitution gives the legislature a broad grant of power to delineate the duties of the Council.
The superior court concluded that although " [Kruse] would not be entitled" to the majority of the relief she requested, the constitutional claims were " subject to limited review for declaratory relief." The court concluded that AS 22.15.195 is constitutional because article IV, section 9 of the Alaska Constitution gives a broad grant of power to the legislature to decide the duties and powers of the Council. But the court determined that the statute does not allow the Council to publish new information within 60 days of an election. It concluded that the legislature wanted to give judges time to withdraw from the retention election if they received an unfavorable evaluation, and allowing the Council to publish new information would conflict with this purpose. Finally, the court denied both parties' motions for attorney's fees because it concluded that it was " ...