This is a continuation of the interview with Justice Alex Bryner by Karen Brewster, William Oberly, and Kelly Taylor on January 24, 2012 in Anchorage, Alaska. This is a continuation from tape number Oral History 2012-02-3, Part 1, and continues on tape number Oral History 2012-02-3, Part 3. In this part of the interview, Justice Bryner talks about being a member of the Alaska Court of Appeals, serving on the Alaska Supreme Court, differences between the types of judgeships, working with other judges and magistrates, and the role of humor in his life and work.
Digital Asset Information
Project: Judges of Alaska
Date of Interview: Jan 24, 2012
Narrator(s): Justice Alexander Bryner
Interviewer(s): Karen Brewster, William Oberly, Kelly Taylor
Videographer: Kelly Taylor
After clicking play, click on a section to navigate the audio or video clip.
Being a member of the first Alaska Court of Appeals and dealing with a heavy workload
Establishing a process for handling the caseload quickly
Deciding which cases to work on and role of the court central staff
Working at a fast pace
First Court of Appeals case - Atchak v. State
Differences of being a District Court judge
Shaping law and sentencing system
Dealing with criticism of or opposition to court decisions
Becoming a justice on the Alaska Supreme Court
Regional representation of the Supreme Court
Traveling to rural Alaska for court proceedings
Role of humor in his life and work
Colleagueship and building friendships
Finding entertainment outside of the workplace
Preferred and difficult types of cases
Building consensus on a multi-judge court
Effectiveness of Alaska's court system
Effectiveness of Alaska's magistrate system
Click play, then use Sections or Transcript to navigate the interview.
After clicking play, click a section of the transcript to navigate the audio or video clip.
KAREN BREWSTER: So we have you becoming appointed to the court of appeals. JUSTICE BRYNER: Okay.
KAREN BREWSTER: The first court of appeals, correct? JUSTICE BRYNER: Okay. KAREN BREWSTER: Right? JUSTICE BRYNER: Yeah.
KAREN BREWSTER: So what was that like?
JUSTICE BRYNER: It was an adventure. It was a complete new experience for everybody. It was a new court with entirely new judges, entirely new facilities, and entirely new procedural structure.
A new criminal code. A new set of rules of evidence, so we were just kind of starting from scratch.
And it wasn’t -- the kicker was that it wasn’t coming here and opening the doors and taking customers one at a time beginning the first day.
The supreme court who would -- which had been well aware of the advent of the court of appeals as it was developing,
and well able to track the likelihood of the court's being approved by the legislature.
At the first confirmation that this was really going to happen, which was well over a year before the court actually was appointed and started out,
the supreme court knowing that it was going to get an intermediate court of appeals stopped deciding criminal appeals and started banking the appeals cases,
and piling them up so that the new court of appeals would have something to do.
And I forget the exact number, but by the day -- the day we got here and started up as a court, just somewhere around the middle of September 1980, just a staggering number of pending appeals
in various stages of preparation with a giant portion of them already prepared and set to go was kind of dumped in our lap and we had to figure out how to --
how to make that work on cases that were already -- some of them had already been around a tremendous amount of time without being considered or decided.
And I guess because the supreme court did this pretty consciously they were also aware of the problems that that would cause.
So we had gotten -- the people who were appointed as the judges of the court were pretty early on informed,
and then since I was appointed as the chief judge of the court by the supreme court, I was specifically told very strongly by the administrative director’s office that the expectations of the court and the model envisioned by the supreme court was --
was that the court of appeals would be a fast paced court of appeals that would turn over appeals -- criminal appeals on a quick pace,
and that we were expected to be able to process through these stacks of criminal appeals.
And I heard various justifications for that - criminal cases all involved repetitive issues. Most of them didn’t -- weren’t very complicated.
A lot of them didn’t involve complicated records and all of which were true and sensible to a certain degree, but it didn’t --
didn’t really account for or alter the fact that we had a tremendous, tremendous number of old cases dumped at us and had in affect been told that we needed to deal with them quickly.
We also needed to deal with them in a way that at least all three of us who were on the court, Bob Coats and Singleton --
Coats and myself all felt very strongly that they had to be dealt with competently.
All -- both Judges Coats and Singleton had tremendous experience in handling criminal cases before, so they both knew what was up and knew what was happening.
The supreme court foresaw and tried to assist the -- the -- assist the court’s ability to handle cases expeditiously by creating a central staff -- of a small central staff of attorneys.
Bob Bacon at the time was the clerk of the appellate courts, and he for his first central staffer, and at that time I think either one or two attorneys -- maybe just one attorney, his first central staff attorney was Susan Orlansky.
So anyway -- who's worked with her knows that's a head start right from the beginning. So we started work with Susan Orlansky.
Each of us had one law clerk at that time which was woefully insufficient we thought. And we began the cases.
To face the first challenge of how we would be able to handle the cases quickly both Bob Coats, who was a clerk for Justice Rabinowitz at the time that I was a clerk for Justice Boney in the early 70’s.
We were both pretty well aware of how the supreme coat handles its cases and votes on its cases,
and it was clear to us that if we followed that path, it would be hard to keep a fast pace.
The supreme court votes and discusses almost all cases in the form of written memos circulated to the various justices.
I think that tradition originated as a matter of necessity by the fact that the original court consisted of a Fairbanks justice, an Anchorage justice, and a Juneau justice in an era where
the phone was your only quick link to anywhere else where travel was difficult and where there was no form of electronic communication really other than phone.
So the -- and the process of writing out all of your -- all of your discussion in complicated cases
and circulating it for sort of seriatim votes by four other people is tremendously time consuming and the slowest vote on the court drives the pace of the agenda.
So there are advantages in terms of -- in terms of the fullness of consideration and discussions can occur,
and there're definitely pluses to that kind of system, but it's just impossible to maintain that kind of a system and keep up with the pace.
So one of the first decisions that we made and it was a Memorandum of Understanding by the three initial judges on the court that we would
circulate, discuss, and vote and edit draft opinions and decide cases primarily at weekly conferences and without written memos.
So it was all by verbal discussion with specific changes to language agreed on during the conferences.
And that way when we concluded a weekly conference with cases on it,
the cases would be ready for secretarial editing and ready to go out the door with the approval of all three of us or if there was a dissent,
the dissent would be ready for a concurring opinion by the next conference.
So that was the kind of format and system that we had adopted. And we initiated it.
I think the court of appeals by and large sticks to it today, and that in itself was I think the one mechanism
that really separated the way the court of appeals functioned from the way the supreme court functioned.
And we really did in the course of about a year and a half or two years manage to clear out a tremendous number of --
a tremendous backlog of appeals to get ahead of it and to really -- to really organize a court that moves at a lot faster rate of disposition with a lot shorter time from submission of a case to the issuance of an opinion.
KAREN BREWSTER: How did you set priorities? I mean you had this whole pile of backlog cases, how do you decide which one to do first?
JUSTICE BRYNER: You -- you sort of -- the approach was to start with the oldest and work as quickly as possible to become updated,
while being aware of special cases that deserve priority or special -- special treatment for any number of factors that warranted it.
Cases involving issues that had circumstances justifying an expedited decision were identified and expedited.
We started a process primarily through the central staff which in addition to the -- central staff had a mission really consisting of two things.
And one of them was to pick out straightforward cases that -- that -- and the idea of a kind of career central staff attorney instead of a --
and just out of law school law clerk, was that with career experience you had attorneys who would be capable of identifying and ranking the difficulty and significance of incoming cases.
So one of the tasks of the central staff were to screen all incoming appeals, sort out the routine cases that could be --
appeared to be capable of being resolved by pre-perfunctory application of settled case law, and to circulate memos and propose draft opinions in those cases.
The non-simple cases, more complicated cases, would then go to the courts.
So -- and we’d have screening memos on all the cases so we'd be able to tell what cases were -- to a certain extent our priorities sort of were arranged and could be shaped
by reliance on the screening memos and by the central staff sort of singling out of routine cases and giving those to us.
The court of appeals after that was sort of expanded to have a larger central staff.
And now they do. I think, most of the misdemeanors are routinely steered --
are kept for central staff, and the going presumption I think is that if it's a misdemeanor, central staff will do it
and they have exceptions for referring some misdemeanor cases to the full court.
So that was the way we sort of worked at -- at catching up the backlog in a sensible way.
And we got it done -- took a couple of years in the process before the court kind of got caught up. And it was a very fast paced court during those times.
It remained a pretty fast court after that.
KAREN BREWSTER: Now, how do you keep up with all that, you know, you must not have very much time to review a case and make a decision?
JUSTICE BRYNER: We had enough time. Definitely enough time, because again the bulk of the time is consumed in the voting process, in the writing process.
And if you adopt internal procedures that encouraged the quick preparation of an opinion,
and then most important of all the quick consideration, discussion, and necessary editing and modification of the opinion to reflect the view of the court,
you can do pretty much the same thing in a very short period of time that would take a tremendously long period of time if you were voting by written memo.
Particularly if you're voting on a five judge court as opposed to a three judge court and the judges aren’t in the same location.
The other mandatory condition that came with the creation of the court of appeals was that all three judges would be in the same location.
They didn’t need to be appointed from the same location, but unlike the supreme court --
supreme court justices are appointed and are free to really continue living and conducting their office or having their -- locating their offices anywhere they want, really.
Unlike that, the court of appeals was -- members of the court of appeals on appointment were told that it didn’t matter where they were appointed from they'd be expected to live and work in Anchorage at the same location.
BILL OBERLY: Do you remember which -- what case was the first opinion issued by the court of appeals, and did that have any significance in the fact that it was a new court?
JUSTICE BRYNER: No particular significance. I can’t remember exactly what the first case -- I remember vividly what my first case was. Atchak vs. State.
KAREN BREWSTER: Tell us about that one. That first one you remember.
JUSTICE BRYNER: As I recall it involved an issue of prosecutorial vindictiveness. The question was that and we decided the issue.
I think the case still remains there, and the test we had adopted was pretty similar to the test that most of the federal circuits now follow.
KAREN BREWSTER: What's significant about that, that it sticks in your mind you still remember it?
JUSTICE BRYNER: It was kind of the first case I had and the first case that I had to work with.
KAREN BREWSTER: And that was your first case with the court of appeals? JUSTICE BRYNER: Yeah.
KAREN BREWSTER: Do you remember your first case when you were district judge?
JUSTICE BRYNER: No. You're dealing with different sets of numbers in the district court. I might remember the first hundred cases, but we tended to --
in the district court we tended to deal with our docket in bundles of cases and not individual cases.
I have vivid recollections of various arraignments sessions where 70 or 80 people were handled at a time,
but not a lot of individual district court cases that linger in the mind. because they come through pretty quickly.
KAREN BREWSTER: You don’t get a lot of time to spend thinking about them.
JUSTICE BRYNER: And most of them -- just a tremendous majority of district court cases - traffic tickets, misdemeanor cases - are resolved without a tria.l
And very quickly. So, yeah, it's -- that's a volume business, especially in a place like Anchorage where you have a constant stream of cases moving through the courts at an incredibly fast pace down there.
BILL OBERLY: As you move through the court of appeals, were you aware of shaping criminal law in Alaska? JUSTICE BRYNER: Oh, we were --
BILL OBERLY: Where you had a new court, new code, new evidence rules?
JUSTICE BRYNER: We were tremendously aware of that. And again, we had a new criminal code, a new evidence code,
and part and parcel we had not only a new criminal code in terms of substantive law that had changed
and all the principles had been altered and reflected sort of the penal, model penal code structure and nomenclature and -- but we also had a new sentencing code.
We had presumptive sentencing, which is just a sea change from the type of totally discretionary sentencing system that existed before.
And so I think a tremendous amount of effort and pretty conscious effort fell
in the direction of trying to figure out and rationalize the new presumptive sentencing system into something that would --
that would work kind of as it was intended to work, and would avoid the sort of extremes that are possible in that kind of a system unless it's really sort of carefully understood.
And that was a tremendously delicate area in terms of the approach, because traditionally sentencing had always been
based in criminal cases on a tremendously broad perception of the scope of discretion that the individual sentencing judge has in each case.
And Alaska sentencing law pretty much recognized that sentencing calls were discretionary calls by the trial court that shouldn’t be messed with.
And that it was the trial court's discretion that was -- that was primary.
And if you have a complicated system of consecutive sentencing, or not consecutive, of presumptive sentencing that
grades up on a mandatory basis or semi mandatory basis based on an elaborate sets of aggravating and mitigating circumstances as criminal experience with individual person changes.
You have an incredible potential for comparable offenders to get incredibly, incredibly diverse sentences --
sentencing for comparable acts based on the individual sentencing views of judges sort of automatic --
automatic differences popping up that are -- And you have sort of a stated goal, one of the stated goals of the presumptive sentencing
schemes was the goal of achieving uniformity, achieving kind of a statistical uniformity. Because one of the purposes of the presumptive sentencing system was to serve as sort of a warning.
And as a notice to people who might be considering the commission of a crime, so that it would enable them to sort of foresee the consequences of -- the specific consequences
of the punishment that would lie at the end of the road if they committed the crime.
So unless you -- unless you interpret and manage that kind of a system in a way that does tend to produce a uniformly predictable sentencing consequence,
you just have a system that -- that's completely impossible to predict with incredible varieties of -- incredible ranges between the high end and the lower end.
And to sort of as the court of appeals to get in the middle of that and try to manage the decision you necessarily have to alter a lot of sentencing decisions, sometimes in fairly picky ways.
And that goes against the grain of the system that existed before where it was all trial court discretion.
BILL OBERLY: But you feel the wrath of district or of the trial judges?
JUSTICE BRYNER: Of all of -- we felt the wrath of -- the court of appeals felt the wrath of trial judges and the court of appeals felt the wrath of prosecutors.
The court of appeals felt the wrath of public defenders.
And the court of appeals felt the wrath of the legislature for years and years and years.
KAREN BREWSTER: How do you deal with that? On this wrath of the public maybe in some cases, as well? What if you make an unpopular decision? How do you deal with that?
JUSTICE BRYNER: You -- you also -- from my perspective I always listen carefully and because sometimes there are good points to be made in the noise.
But at the same time, you just have to have a thick skin and do what you're doing.
I think one of the toughest cases that I ever worked on and I ever sort of had to develop and put out there were the most unpopular cases I think I ever decided, was Juneby vs. State where we finally had been --
been dealing with problems of -- various problems and quirks of the new sentencing system so that we had a good
idea that I think collectively that judges all probably had a good idea where things were headed and how the system --
the system was sort of ripe to -- for a little more structure and sort of a little lecture about how it needed to change.
And so it just happened in Juneby. And when Juneby came out just -- just a sea of protest from the prosecutor’s office.
The legislature didn’t like it, but it ended up, I think, passing the test of time by
really putting some structure in the system and explaining it in a way that emphasized the need for sort of a system that was predictable --
was done uniformly and that where particular factors didn’t have --
aggravating or mitigating factors didn’t have extreme consequences and where it all had to be sort of rational and incremental and orderly.
BILL OBERLY: And did you three know when you were deciding and writing Juneby that it was likely to --
JUSTICE BRYNER: Oh, I was yeah, no I was very aware of that and very aware of sort of the dangers and pit falls of trying to do that.
And every once in a while we'd come out with sentencing decisions that -- and sentence appeals that --
and get slammed down by the supreme court because we sort of stepped a little too far, which is to be expected. But by and large the supreme court left us alone.
KAREN BREWSTER: It does move me into my next question. Which is you then did move on to the supreme court and served on the supreme court?
JUSTICE BRYNER: Yeah.
KAREN BREWSTER: What happened there? JUSTICE BRYNER: It took a while.
KAREN BREWSTER: Yes. It took about seventeen years, I think.
JUSTICE BRYNER: The court of appeals was the first time I'd held a job more than three years at the same place.
And that was about seventeen years. KAREN BREWSTER: Yes. JUSTICE BRYNER: Yeah.
KAREN BREWSTER: And so what instigated that shift?
JUSTICE BRYNER: I just applied. Just applied for an upgrade. I had enough miles to get an MVP membership.
No, an opening came up and I was tempted.
Applied, and the time was right, and I got appointed.
KAREN BREWSTER: Do you think the fact that you'd clerked early on for a supreme court justice had an influence on why you decided?
JUSTICE BRYNER: I think it probably did if for no other reason than the fact that at least Justice Rabinowitz was still on the court at the time and knew me.
He had worked with me while I was on the court of appeals.
I had been -- during the break in service created when Ed Burke retired from the supreme court and Judge Eastaugh was appointed to replace him there was about a six month break,
and so I had been invited to come up and sit with the supreme court as a fill-in justice during those years.
That was about two or three years before the next opening.
So -- so that provided me with sort of useful experience to confirm to me that it would be fun to -- to shift my position so I had --
I was sure when I applied that it was something that I wanted to do.
I think that sort of gave the sitting justices at the time more of an opportunity to work with me and to figure out that -- that --
who I was, and the ultimate call though wasn’t the supreme court’s, it was the governor’s and the Judicial Councils.
But I don’t think that -- that my experience either as a clerk or on the court of appeals was insignificant in my getting appointed.
KAREN BREWSTER: But you became appointed from Anchorage and at the time there was no judges from Fairbanks then on the court, and so there seemed be a particular --
JUSTICE BRYNER: And that was a definite -- and that was a definite issue.
And I think Andy Kleinfeld who was on the federal bench at the time
on the Ninth Circuit from Fairbanks and had started out his career as Justice Rabinowitz’s law clerk at about the same time as I -- sort of made an issue of that.
But the tradition of having one justice here, one justice in Juneau, one justice or three justices here and one in Fairbanks, one in Juneau had been broken years before when
Allen Compton to have been appointed to the supreme court seat in Juneau, eventually for medical and other reasons decided to relocate to Anchorage.
So for years the court had been functioning without a Juneau justice -- that wasn’t a tradition of having to have somebody.
There was nothing in the constitution that dictated -- that dictated that.
KAREN BREWSTER: Do you think about how the court -- how well it represents Alaska if it has broader representation
or if it were to have a rural representation on it if that would make a difference for how it handles justice in the state?
JUSTICE BRYNER: I'm not sure you can predict differences that closely.
I think in the long run there are great arguments to be made for having a system of selection that avoids
any kind of limitation on range of experience so that -- so that if you have a system that systematically excludes any type of practice or any geographic area of experience that's a downside.
On the other hand, I don’t think you need to or necessarily advance anything by systematically keeping a justice here or a justice there or a justice somewhere else, particularly in --
at the supreme court level where you have pure issues of law that have ramifications kind of statewide, you shouldn’t be deciding cases too frequently based on local perceptions and local differences.
There's a flip side to the argument too, but anyway what -- given both arguments, I ended up getting appointed so I've never complained.
KAREN BREWSTER: Well, you've certainly served in all capacities within the legal community in Alaska. What's been your favorite?
JUSTICE BRYNER: I've had -- some of my favorite experiences have been sort of traveling and occasionally presiding in cases in the Bush.
Training magistrates in the Bush. Working in the remote areas of the town both as a public defender and as a judge.
In the district court we pretty regularly traveled around.
I had district court cases that I had to handle in -- both as a public defender and as a district court judge on a temporary basis in Bethel and Kotzebue.
Traveled regularly to Palmer or Valdez. So a number of different areas.
And those are always a little bit scary if you're sort of from California, and have most of your experience limited to a place like Anchorage.
But always rewarding, and edifying, and tremendously interesting.
KAREN BREWSTER: We want to talk a little bit about humor.
JUSTICE BRYNER: Okay.
BILL OBERLY: Do you want me to ask the ques -- KAREN BREWSTER: Yes.
BILL OBERLY: Specifically, in your early judicial opinions it seemed that humor played a part in your approach to the law.
And I assume that came from a long career at making that part of your approach to law.
How did that -- how does humor play into your legal approach, both as an attorney and as a judge?
JUSTICE BRYNER: I mean, I guess I'm not too conscious of how I differ from other people. I guess I've always --
I guess I've never hesitated to see things on the light side, and to poke fun at things if I saw the opportunity to do it.
And I've also -- I've also -- it's also been easy for me to see room for humor in a lot of things,
particularly when you're dealing with gloomy or difficult areas where there's a real danger in taking yourself and taking your subject matter too seriously, and forgetting the need for perspective.
And to me humor is also -- has always been kind of a leavening agent that was there and that could be used effectively in effective cases.
There always has to be a balance, I guess, and you always have to be careful not to send the wrong message and maybe sometimes I fall on the wrong side of the balance,
but I mean I've never consciously decided to do things in a funny way, but then again sometimes if something
occurs to me that seems like it might be fun to say and might not offend and might help to make a point, why not use it.
KAREN BREWSTER: I can imagine that your workplace must have been a fun place to work, was it? Do you help make the workplace fun?
JUSTICE BRYNER: Well, I -- I mean I always tried to for my own sake.
I mean, because the cases that we're working on are -- really are pretty serious cases.
They require you to be careful and dedicated, and I mean it's hard, difficult work to get things right, to consider things, to resolve disagreements in a collegial court of --
with multiple judges without friction, without effort, without kind of making adjustments.
And you do this in a court system as a judge in a pretty isolated area where your contacts with the real world become more and more distant the higher you get in the court system.
And the more danger there is in just finding yourself living in a tiny universe of people who feel free even to communicate with you,
and by the time you get to the supreme court if you just want to be a regular person outside of the office, it gets hard to do that because even though
as a justice I wouldn’t have trouble relating anybody just as a regular person everybody I know who I used to knew --
know or almost everybody I know who I used to know is in the attorney community after I'm a member of the supreme court for a few years,
or people I didn’t know can’t have sort of a normal approach. It's impossible for them to approach me and say hi Alex, how's it going?
It just doesn’t happen. So there's this -- it's like being a pariah. You're sort of known and you can’t --
it's much harder to have just a regular life if you're a member of the judiciary in any of the communities.
KAREN BREWSTER: So who do you become friends with? Do you become friends with your --
JUSTICE BRYNER: So, you become friends with your staff and you become friends with your law clerks, and those become your relevant group of close regular casual contacts.
And if you can’t keep things fun at that level, then life really becomes dreary because there's not a lot of room for fun on sort of a regular basis outside.
So, yeah, I never hesitated to --
BILL OBERLY: Did it seem in public like your first name has been changed to Justice? JUSTICE BRYNER: Yeah, and --
KAREN BREWSTER: Do you become friends with the other justices in your court or in the other courts or -- ?
JUSTICE BRYNER: Sure, I mean and we have on all of the courts that -- that I've served on all of the judges have tended --
considering differences in personality and stuff like that have tended to be very collegial, very nice people to deal with.
And some people more difficult than others, but that's always been an area, and you do develop close friendships on the bench with your colleagues.
KAREN BREWSTER: I think it would be different, yeah, on one of these -- on the court of appeals or supreme where you're multi judges.
Those relationships, whereas if you're just a single judge in family court or district court or something.
JUSTICE BRYNER: Except in those kinds of situations, too, with trial court judge you're always handling difficult novel situations without any real sounding board.
Except the judges working next door to you or across the hall from you and stuff like that and so a lot of -- a lot of times trial --
in my experience with trial judges develop tremendously close relationships just because --
because they realize that what an incredible resource they are to each other in terms of being able to ask for the kind of advice
and sound out the kind of thinking that you need to make sure that you're not kind of going off the deep end or that you're not missing something.
KAREN BREWSTER: So it sounds like, you know, you said the social isolation or it certainly sounds very stressful work.
And what do you do away from the office to -- for your free time what kind of things did you do to keep yourself entertained and sane?
JUSTICE BRYNER: A lot of the times for the last thirty years or so I do a lot of sports stuff, a lot of outdoor activities.
You know, biking, running, skiing, things like that. And just ordinary social things.
My family has always been a source of -- of absorption or distraction or whatever from my judicial duties.
But if you have a growing and in process family at home and a full-time judicial job that takes care of a big part of your time.
KAREN BREWSTER: Right. I had another question, but now I just forgot what it was. But, what would you consider your most important ruling?
JUSTICE BRYNER: I'm not sure there is a sort of a most -- there are kind of categories of cases that are most important cases. I think --
KAREN BREWSTER: Maybe I can -- I'll rephrase it back a little bit and it might get you thinking. Which is you've worked on criminal and civil cases, do you have a preference?
JUSTICE BRYNER: No, I don’t have a preference by civil or criminal.
And I don’t really have any preferences. I'm always happy to take whatever case comes before me.
Some of the cases by the time I get finished working on them I'm not as happy about as others.
But some of the puzzles and problems posed in cases are -- end up seeming more difficult and more significant than in other cases.
I think the most difficult sets of cases that I've had to work for me are cases involving --
cases in areas that really do involve cultural or social issues that are -- that are prominent and significant inequalities that are --
that are kind of entrenched or ingrained and hard -- hard to deal with.
Systematic problems that make it difficult to -- to give criminal offenders equal -- equal treatment in various circumstances.
Cases involving parental rights and children in need of aid.
And termination of parental rights for parents who are incapable of -- where so much of the problem is -- is -- is almost insoluable by the time a case gets on appeal.
And here where so little can be done and there's so much room for -- to sort of spot situations that really shouldn’t have happened
And where the harm really is -- is kind of irreversible.
Cases involving sort of major cultural issues like John v. Baker.
KAREN BREWSTER: What's that one?
JUSTICE BRYNER: Which involved the sovereign rights of Alaska Natives.
And whether any kind of sovereignty exists in Alaska for Alaska Native people in the absence of a formal federal system of Indian country.
KAREN BREWSTER: And how did that go, what was the ruling on that?
JUSTICE BRYNER: And the ruling was that the court ended up concluding that there was an aspect of sovereignty that continued to apply in Alaska
despite the absence of Indian country and despite federal law that didn’t establish a reservation system in Alaska.
And despite an Alaska constitutional structure that recognizes that all Alaska Natives are full citizens of the state.
KAREN BREWSTER: And were you on the majority of minority decision on that one?
JUSTICE BRYNER: I was in the majority.
KAREN BREWSTER: I'm just wondering how it feels, you know, go through an appeal process and you're either dissenting or majority and --
JUSTICE BRYNER: And that was -- of all the cases I worked on, that was the case, I think, where
the opposing sides on that case sort of had the most extended and thorough discussion of their views that I've ever seen.
I mean just a tremendously intense and focused discussion on a history of sort of federal law
and federal rulings on sort of a history of Alaska -- Alaska law and prior Alaska Supreme Court and the United States Supreme Court decision to -- a very complicated and technical issues.
Very obscure historical decisions and doctrines, and all of that was sort of pretty much -- we covered all the territory that could be covered in a tremendously long and considered discussion, and ultimately ended up with differing views on the court.
And, but in a way being able to -- and having the time to conduct that kind of an inquiry and discussion was at least to me tremendously reassuring and cementing the notion of the --
of really the benefits of having the kind of system we have.
We have the independence to do that and to -- and the time to devote the attention to it.
But those are difficult cases to decide and there's no right answer. You never --
KAREN BREWSTER: So it's interesting that you don’t have to have consensus.
You don’t all have to agree to have a case be concluded.
JUSTICE BRYNER: No, but you have to have a majority.
KAREN BREWSTER: You have to have a majority, somehow. JUSTICE BRYNER: Yeah.
KAREN BREWSTER: So how do you build that -- I mean you have to be able to build a consensus somehow, I guess, to get to a majority, perhaps.
JUSTICE BRYNER: You do.
KAREN BREWSTER: And how do you do that?
JUSTICE BRYNER: You do that by discussing ideas and by sticking to the merits.
You know, and I think if in difficult cases that those are areas where a sort of a written Memorandum of Discussion tends to serve better because you --
you avoid the sort of the inflammatory possibilities of personal face-to-face argument.
And it helps to lay out your views on complicated issues in writing so that you have a better assurance that your --
that the two sides are talking about the same thing and so that --
KAREN BREWSTER: Is it -- as a non-legal person it all sounds very complicated to me.
You know, how could you ever come to a decision on some of these things? It's so detailed and so complicated.
JUSTICE BRYNER: You sort of hash it out and you do your best and you -- and you come out to a, you know, one of the --
one of the tremendously important things is having respect for the people that you work with and a collegial relationship with them.
And having an understanding of sort of the types of boundaries that -- that keep that kind of system functional.
And I think one of the things that impressed me the most about all the time I spent on the Alaska Supreme Court as a justice was that all of the justices
were very highly sensitive to the -- to the need to keep that kind of collegiality, and even in areas where there was a hot disagreement.
The need to sort of avoid forming -- kind of conducting side discussions and coming to side deals with justices to win votes.
I mean our discussions were always limited to discussions that we would have either in person in conference or in memos exchanged to -- to all justices.
And really, little, if any, sort of lobbying from chambers to chambers to try and win votes by the back door so that your view would prevail.
KAREN BREWSTER: I'm sure it could have been challenging in some situations.
JUSTICE BRYNER: Yeah.
BILL OBERLY: The -- you traveled you said a lot as both a public defender and district court judge out to Native or primarily Native villages, Bethel, Kotzebue.
And the culture in the Native villages is pretty distinct from Anchorage.
How was the challenge of trying to fit a single justice system into two distinct cultures?
How was that -- did that impact your time on the bench and how do you think that works?
JUSTICE BRYNER: I think there are tremendous challenges and it's almost impossible to have the court system have the same kind of impact in --
in the Bush that it has for it to be viewed the same way for it to be understood the same way and for it to have the same affects in both places.
It can’t be done. So there are -- and that will always be a major problem.
Then again by sort of focusing emphasis on bringing the justice to the people and so that the court system has its presence and operates in communities
in as much time -- for as much of the time and with as much presence -- personal presence as possible.
That kind of presence allows local communities to shape and change the local courts, so that they become more understandable and particularly with time so that the courts --
so that the local residents understand the courts and understand the way they function better.
And appreciate better what's happening to them because of the court system while at the same time having the local judiciary and the judicial staff people
who often come from the community, yet the judges don’t, come to understand the public.
How they're perceived by the public, and how their conduct and their consequences and their rulings need to --
need to be shaped in order to be understood and accepted by the community.
So, there's a lot of flexibility in the court system. And it's a statewide court system, but it has to be, I think, not only present everywhere in Alaska, but it has to
with time develop and shape so that it functions in a way so that the same level of justice and the same substantive way can be delivered in ways that are --
that are perceived to be just and fair, and that are understood by the communities where the justice is delivered.
KAREN BREWSTER: Do you think the magistrate system is an effective part of that?
JUSTICE BRYNER: The magistrate system can be an effective part of it, but there're also problems with the magistrate system.
And I think inherent problems, because when you have a magistrate system, it's often a substitute for something that should be a real judicial system.
It's often difficult to find magistrates who are willing to serve for a sufficient time to get the experience they need to do the job well.
It's also hard to find legally trained magistrates who understand and apply the concepts well.
There's always the danger on one side of magistrates not staying long enough to be valuable.
On the other side the danger of having magistrates with tremendous power to do injustice who aren’t qualified.
And who will be the only justice in a community and will systematically do injustice without any real effective control.
That said, it's a very -- it's workable and very valuable if it can be administered and if you can get the right people in the right places.
It's just never been an easy fit.