Alaska Chief Justice Daniel Winfree speaks during and Feb. 1 joint session of the Alaska Legislature.

In his final State of the Judiciary address to a joint session of the Alaska Legislature, a visibly annoyed Chief Justice Daniel Winfree lashed out against anyone who dares to criticize the courts, or suggest that judges might be politically motivated in some of their decisions.

His Feb. 1 State of the Judiciary address in Juneau began routinely enough, with a run down on staffing and backlog challenges and successes that Alaska courts have seen with new technology and expanded hours.

With the approach of his 70th birthday this month, Justice Winfree is constitutionally required to step down, which he will do on Feb. 6 when Justice Peter Maassen takes over as chief justice.

In his last major public appearance, however, Winfree appeared defensive, and at times angered by critics who claim that some judges are political “activists.”

He began by attempting to draw distinctions between politicians and judges, asserting that lawmakers engage in heated political disputes as they solicit campaign contributions and discern the political winds of the day.

“I couldn’t do what you do,” Winfree said. “It’s not my makeup.”

“I want to contrast how you go about your business and we go about ours,” he added.

Politicians, Winfree said, must listen to constituents, seek information from outside sources, check opinion polls, and then pursue policies that either mesh with constituents or help their own reelection plans.

Winfree characterized this process as “transactional politics and majority rule,” both of which he warned can threaten minority rights and privileges.

“What constrains political-transaction majority rule?” he asked.

Winfree answered that the Alaska Constitution serves as a legal “riverbank.” Politicians can do whatever they want, so long as they don’t “unilaterally alter” or attempt to “jump” the riverbanks.

He then cast himself and those in the judicial branch as guardians of the riverbank, ensuring that everyone operates within the fixed rule of law.

Winfree noted that judges are, at times, asked to resolve high profile political disagreements, such as redistricting challenges, turf wars between the Legislature and governor, citizen challenges to legislatively enacted statutes and disputes over the legality of certain voter initiatives and referendums.

In deciding these controversies, Winfree said judges make a conscious effort to “put aside personal views and public opinion.”

Unlike politically motivated politicians, Winfree said judges don’t “go asking our friends and confidants how we should rule. We don’t conduct opinion polls to see how people think we should rule or how people will react to a ruling. We don’t check with our friends in the Legislature or executive branch to see what they think about it. We consider only the evidence presented in the court, the relevant law, and we disregard everything else that could inappropriately influence the outcome.”

He proceeded to deride “most people” who criticize judicial decisions as being ignorant and basing their information “solely on how their internet sources characterize the resu

To do otherwise, he said, would draw into question the judiciary and the rule of law.

At this point, Winfree expressed anger and frustration at anyone who dared suggest that perhaps politics does – on occasion – play a role in judicial decisions.

“Now some of you are thinking, I’m sure, ‘What a crock. Of course, politics are at play in our decisions, and we really are just a bunch of activists judges,’” Winfree said. “But I believe that’s because you see everything through a transactional, political lens. You see a political dispute, and conclude that any decision we might make on it must be political.”

Winfree adamantly defended himself, saying he only ever considers the law and the facts in reaching legal opinions.

He suggested that accusing a judge of being an “activist” is just a means of casting aspersions against a “judge who rules against you.”

“Because the losing side is always – always – certain that it couldn’t possibly have been wrong in its interpretation of the facts or the law,” Winfree lectured the assembled lawmakers.

He proceeded to deride “most people” who criticize judicial decisions as being ignorant and basing their information “solely on how their internet sources characterize the result, without ever reading or caring about our written explanation of the relevant facts and the law and why we came to our decision.”

He later denounced those who have suggested that Alaska should revisit the way it selects and appoints judges, saying their true aim is to undermine the judicial branch.

“If they don’t like the result, we’re either corrupt, incompetent, or even worse – radical liberal activists, radical conservative activists. You name it, that’s what we are,” he said. “When they like the result, we’re incredibly smart, wonderful or at least a blind pig who can find a truffle.”

Winfree continued to scold those “who should know better,” and yet continue to stir criticism against judges.

He later denounced those who have suggested that Alaska should revisit the way it selects and appoints judges, saying their true aim is to undermine the judicial branch.

In recent years, many conservatives have advocated for a system that resembles the federal government – one in which the president nominates, and lawmakers vet and confirm appointees. Others have suggested that Alaska allow citizens to elect judges directly, as many other states currently do.

Winfree doggedly defended Alaska’s current system in which an unelected seven-member Alaska Judicial Council enjoys sole authority to determine who the governor can choose from among when appointing judges.

To veer from this status quo, is to oppose an “independent judiciary,” Winfree asserted.

“I recognize that some here don’t believe in an independent judiciary, but rather believe that Alaska’s judges should be hand picked and controlled by politicians so that the judges will render decisions that the politicians want,” he said.

He added that these ideas were ultimately rejected by Alaska’s original constitutional convention delegates in favor of the current system.

“The delegates wanted politics out of the judicial selection process, all the way up to the governors’ constitutionally authorized appointment of a judge from a list of the most qualified applicants provided by the Alaska Judicial Council,” Winfree said.

He failed to mention, however, that there was also considerable debate among the constitutional delegates about the immense power that were bestowing on the seven-member Alaska Judicial Council in allowing such a small group of unelected lawyers shape an entire branch of state government.

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Alaska’s chief justice derides those who suggest judges may be ‘activists’

Joel Davidson
Joel is Editor-in-Chief of the Alaska Watchman. Joel is an award winning journalist and has been reporting for over 24 years, He is a proud father of 8 children, and lives in Palmer, Alaska.