In the Disciplinary Matter Involving a DISTRICT COURT JUDGE.
Application from the Alaska Commission on Judicial Conduct.
Timothy A. McKeever and Stacey C. Stone, Holmes Weddle &
Barcott, P.C., Anchorage, for Petitioner.
N. Greenstein, Alaska Commission on Judicial Conduct,
Anchorage, and Jeffrey M. Feldman, Summit Law Group PLLC,
Seattle, Washington, for Respondent.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
a disciplinary sanction, a judge was not recommended for
retention by the Alaska Judicial Council. Although the judge
chose not to campaign, an independent group supported his
retention and campaigned on his behalf. After the election
the Alaska Commission on Judicial Conduct filed a
disciplinary complaint against the judge and later imposed an
informal private admonishment on the judge because he did not
publicly address allegedly misleading statements made by the
independent group. Because the statements clearly originated
with the independent group rather than the judge, and the
judge had no knowledge of one statement, the judge had no
duty to publicly address any of the statements. Accordingly,
we reverse the Commission's admonishment and dismiss the
Commission's complaint against the judge.
FACTS AND PROCEEDINGS
petitioner is a state district court judge. In a previous
disciplinary matter, the Alaska Commission on Judicial
Conduct filed a recommendation for discipline against the
judge. We adopted the Commission's disciplinary
recommendation. Based on the same misconduct, the Alaska
Judicial Council recommended that the judge not be retained
in a subsequent election. The judge sought advice from
counsel and chose not to mount his own retention campaign.
friend of the judge's wife learned about the
Council's recommendation and decided to fund an
independent campaign to support the judge's retention.
She was careful not to share her decision with the judge or
his wife. A few weeks before the election she hired a local
agent and told him "to put a face to the name and tell
folks about [the judge]'s background and
experience." The agent registered an independent
expenditure group called "Friends of [the Judge], "
and his team produced mailers, billboards, social media
advertisements, and a website for the campaign. The friend
was the sole financial contributor, and the agent exercised
nearly complete control over the campaign's messaging.
judge was kept ignorant of the independent campaign, and the
judge had no control over the campaign's activities. The
friend stated that she "did not tell [the judge or his
wife] of [her] plans, did not involve them in any way in any
of the campaign activities, did not solicit or seek their
input, and did not request their review or approval of the
plans or any materials." Likewise, the agent said the
judge had "no awareness or influence He didn't
approve anything that we put out there." The agent did
arrange to meet the judge in person and "snap a couple
photographs" for the campaign, but the judge
"seemed a little confused as to who [he] was." The
agent told the judge only that he was "a fan of [the
judge] and [they had] mutual friends."
the judge was aware that he had supporters, he was not aware
that there was a campaign. The judge avoided campaigning
himself but understood from his counsel that allowing an
anonymous supporter to take his photograph would not be
improper. He rejected all other requests, telling supporters
who wanted to help that he was not involved in any campaigns.
after the election, the Commission initiated a complaint
against the judge, alleging material misrepresentations in
the items circulated by the campaign. The Commission later
clarified that it was investigating the judge's duty to
correct the independent campaign's alleged
misrepresentations. The Commission focused its attention on
three specific campaign items: a mailer, the website, and a
social media advertisement.
mailer and the website prominently featured two quotes
regarding the judge which arose from the judge's previous
disciplinary action. Both quotes appeared in the public
record and were chosen by the agent's team. The first
quote was attributed to another judge: "An excellent
knowledge of the law .. . Real skill at legal analysis
[sic]." The second quote was attributed to the
Commission itself: "An excellent character and
reputation." Both the mailer and the website stated that
they were "Paid for by Friends of [the Judge]" and
that the communications were "not authorized, paid for
or approved by the candidate."
social media advertisement featured an image of the judge
tied to a stake and surrounded by flames with the caption:
"Witch Hunts are so 18th century." The agent's
team had digitally altered the judge's facial expression,
added the stake and flames, and come up with the concept and
text. The "witch hunt" image was used only online.
judge did not personally receive the mailer; he first learned
about it four days before the election. He learned about the
website two days before the election. The judge did not learn
about the social media advertisement until well after the
an informal investigation the Commission found that the two
quotes falsely implied endorsements from the other judge and
the Commission, that the advertisement falsely implied that
the recommendation of non-retention was a "witch hunt,
" that the judge knew or had reason to know of the
campaign's existence due to the photography session, that
the judge had actual knowledge of the mailer before Election
Day, and that the judge took no action to correct the
campaign's misrepresentations despite this knowledge.
Pursuant to AS 22.30.011(b), the Commission imposed an
informal private admonishment on the judge after concluding
that the judge's failure to publicly address the two
quotes and the social media advertisement violated the Alaska
Code of Judicial Conduct. The Commission also asked the judge
to "correct the public record in some manner to address
the concerns raised."
Commission denied the judge's motion for reconsideration.
We granted the judge's original application for
relief and now reverse the Commission's
Application For Relief
preliminary matter the Commission argues that we should not
exercise our power of review over its informal private
admonishments. The Commission makes three arguments: (1) the
statute governing the Commission's disciplinary authority
does not contemplate our review of informal admonishments;
(2) informal admonishments are an important tool that will be
compromised if they are subject to our review; and (3) an
informal admonishment is not a sanction and therefore not a
formal action to be reviewed. We are not persuaded.
it is true that AS 22.30.011 does not provide for supreme
court review of the Commission's informal decisions,
this is not the first time that a pre- recommendation
decision has been reviewed by this court. We have also
previously determined that our review was appropriate under
similar circumstances in the attorney discipline context. In
Anderson v. Alaska Bar Ass 'n a complainant
asked us to review the Bar Association's decision not to
open an investigation into his grievance alleging attorney
misconduct. The Bar Rules did not provide for
supreme court review of these grievance-closing decisions,
but we nonetheless concluded that such decisions "may,
upon timely request of a complainant, be reviewed by this
court." We explained that our conclusion was
"based... on the presumption of reviewability pertaining
to all final administrative orders, and the inherent
authority of this court to regulate the practice of
apply similar reasoning here. The Commission's
admonishment is a final disposition and thus presumed
reviewable, and article IV, section 10 of the Alaska
Constitution vests in this court "the ultimate authority
in disciplinary matters affecting the
judiciary." We conclude that we may, upon timely
request, review the Commission's imposition of an
informal private admonishment.
all original applications for relief, a grant of this review
is "not a matter of right but of sound discretion
sparingly exercised." We appreciate the
importance of informal disciplinary tools and the
Commission's expertise in handling these matters.
Nonetheless, an informal private admonishment can become an
aggravating factor in a future disciplinary matter,
 and Appellate Rule 404 is the only
avenue of relief for a judge who wishes to challenge such an
admonishment. And the mere possibility of