Of the 19 judges who are up for retention election this year, none have generated the heated controversy and opposition that surrounds Anchorage Superior Court Judge Adolf Zeman – the man who issued a ruling this past April which threatened to undermine the state’s popular homeschool allotment program.

While Zeman’s ruling was eventually rejected and overturned by the Alaska Supreme Court, it created massive confusion and instability for roughly 24,000 students and their families just months before the start of the current school year.

In correcting Zeman’s flawed decision, the Supreme Court rejected his claim that the state’s entire homeschool allotment program should be discarded because some families use the funding to provide their children with educational opportunities at private or religious schools.

Zeman claimed it was unconstitutional to spend public funds at private or religious educational intuitions or organizations, because the Alaska Constitution forbids the use of public funds for the “direct benefit” of such entities.

Defenders of the homeschool program argued that the allotments only “indirectly” benefit private and religious schools, since the money is given to the parents, who could have spent the funds in myriad ways. They compaired it to families who may decide to spend part of their annual Permanent Fund Dividend money on such schools.

While the Supreme Court declined to rule on the constitutionality of using the allotments in this manner, it did declare that Zeman was wrong to strike down the allotment program in its entirety based on the belief that some expenditures might be unconstitutional. In essence, the Supreme Court affirmed that a law cannot be deemed “facially unconstitutional” if it has constitutional applications, which the homeschool allotment program clearly does.

Zeman has faced widespread criticism for his decision, despite the fact that the Alaska Judicial Council has publicly recommended voters keep him on the bench.

As with past elections, however, the Judicial Council’s endorsement of Zeman never mentioned his controversial ruling, or any opinions he has ever issued. Instead, the Judicial Council focused on “temperament, diligence, and administrative skills,” none of which lets voters know anything about whether Zeman views his role through a traditional constitutionalist or radical judicial activist lens.

Similar to past years, the Judicial Council has formally recommended that Alaska voters keep all judges who are up for retention votes.

The seven-member Alaska Judicial Council is comprised of four attorneys from the left-leaning Alaska Bar Association. This lawyers’ union effectively controls who gets to be a judge. According to Alaska’s Constitution, whenever a judicial vacancy appears, the Judicial Council must pick and send at least two candidates to the governor for him to select a replacement. No one else has any say over who these two candidates are, and the governor must pick one, even if he disagrees with their judicial approach.

Not only that, but the Judicial Council also gets to publish its own voter guide, which lavishes praise on every judge who is on the ballot, while offering no information on how they ruled in specific cases.

In practical terms, this has led to nearly every judge being easily approved by voters whenever they are up for retention.

Zeman’s reelection bid is decidedly different this year, and a number of left-leaning organizations have come to his defense. Groups like Alaskans for Fair Courts assert that organized efforts to oppose judges such as Zeman are nothing more than special interest groups attempting to sway Alaskans to “replace judges who will not support their groups’ beliefs or politics over the rule of law.”

In Zeman’s case, however, the state’s high court found that his homeschool allotment ruling overstepped the rule of law.

While the Alaska Judicial Council ultimately recommended voters retain Zeman, there was some disagreement on the matter. In fact, two members of the Judicial Council voted against Zeman’s retention recommendation, while four voted in favor.

Overall, not a single judge was unanimously recommended for retention, and one required a tie breaking vote from Alaska’s Chief Justice. Click here for details.

Despite the fact that most judges have historically won their retention votes with 60 to 70 percent of the popular vote, Zeman’s campaign may face a tougher time, especially since many Alaskans can now point to a concrete and deeply unsettling ruling – one that had to be corrected by the Supreme Court in order to avoid mass confusion for roughly 20% of the Alaska’s school-age children.

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