Court’s Abuse of Power Invites Public Backlash

Op- Ed: appeared in the Anchorage Daily News March 4, 1998

by Senator Loren Leman (Senate District G)

On February 25, the Alaska Legislature gathered in joint session to listen to the annual "State of the Judiciary" address, delivered by Warren Matthews, Chief Justice of the Alaska Supreme Court. Aside from his request for additional funding and a concern about high caseloads in certain districts, Justice Matthews informed us that all is well with Alaska’s court system.

Unfortunately, all is not well with Alaska’s courts – and the problems will not be cured with additional money. Alaska’s constitution created three independent branches of government: the legislative, executive, and judicial. In theory, the three branches are co-equal. In reality, the judiciary’s power has crept far beyond its original mandate, to the extent that the court is clearly encroaching on the legitimate authority of the legislative and executive branches. This trend should concern Alaskans, because the judiciary is the least accountable to the public.

The Supreme Court’s 1997 decision in Mat-Su Coalition for Choice v. Valley Hospital Association is only the most recent example of the court’s abuse of power. Here are the facts: in 1992 the Operating Board of Valley Hospital in Palmer voted to no longer permit elective abortions. Exceptions were allowed for pregnancies endangering the life of the mother, pregnancies caused by an act of rape or incest, and also in cases of severe fetal deformity.

Valley Hospital is a private, non-profit corporation managed by an operating board that is elected by members of the Valley Hospital Association (VHA). The operating board no doubt felt it was exercising a valid right because an Alaska statute enacted in 1970 specifically states "Nothing in this section requires a hospital or person to participate in an abortion…" [AS 18.16.010(b)].

Incredibly, Justice Matthews and three of his colleagues on the Alaska Supreme Court declared that Valley Hospital’s policy is unconstitutional. Under court order, Valley Hospital is now being forced to provide abortions, in violation of the consciences of its directors, members, and employees.

As for the Legislature’s 1970 law protecting the right of hospitals not to provide abortions, the court has declared the law to be "unconstitutional" at least as it applies to Valley Hospital and other "quasi-public" institutions. Although Valley Hospital is clearly a private health care institution, the court declared it to be a "quasi-public" institution because, like virtually all hospitals, it receives some government funds. Thus, the "right to have an abortion" has now undergone a terrifying evolution, courtesy of the Supreme Court. It has now become a weapon to coerce people and institutions to participate in what many consider to be an act of violence against an unborn child.

The arrogance displayed in the Valley Hospital decision is unfortunately not an isolated incident. Many judges are no longer content to interpret the law. Instead, they are busy writing the law – legislating from the bench, in violation of their constitutional mandate. This trend recently came under sharp criticism from no less an authority than U.S. Supreme Court Justice Antonin Scalia. "What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court?" asked Justice Scalia. "Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize."

Justice Scalia’s comments ring true for me. I am a lifelong Alaskan, yet I do not recognize the Alaska which the court is attempting to create when it renders decisions such as Valley Hospital. It is a place alien to the values of my family and most Alaskans.

Left unchecked, the courts acquire frightening power. This was clearly recognized by the twelfth Chief Justice of the U.S. Supreme Court, Harlan Fiske Stone (1872-1946). Justice Stone wrote: "While unconstitutional exercise of power by the executive or legislative branches of the Government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of restraint."

In their lack of restraint, the Alaska courts have ignored Justice Stone’s advice. Not surprisingly, the Legislature is considering HJR 47, which would require legislative confirmation for appointees to the Supreme Court, Court of Appeals, and the Alaska Judicial Council. If the court cannot resist the urge to trample on the rights of the people, its power must be checked by the voters and their elected representatives.

Senator Loren Leman represents District G, which includes parts of west and north Anchorage and also Elmendorf Air Force Base. Senator Leman serves as Chairman of the Labor and Commerce Committee and Vice Chairman of the Health, Education, and Social Services Committee.