Justice Jay Rabinowitz was interviewed on April 11, 2000 by Ronald Inouye in Juneau, Alaska. Jay Rabinowitz was born in Philadelphia, Pennsylvania in 1927, and grew up in New York City. He served in the military in World War II and graduated from Harvard Law School. He came to Alaska in 1957 as a law clerk for territorial judge, Vernon Forbes. He served on the Alaska Supreme Court from 1965-1998, with four terms as Chief Justice. In this interview, Justice Rabinowitz talks about his family background, the territorial judicial system, the Judicial Council and state system for judicial appointment and retention, rural justice and tribal sovereignty, setting up Alaska’s early court and legal system, serving on the Alaska Supreme Court, balancing work and family, his legal philosophy and views on inequity, and his legacy on the Supreme Court. Justice Rabinowitz was also interviewed in October 1982. This interview is available at the Joint Archives of the Alaska Court System and the Alaska Bar Association, Alaska State Court Law Library, Boney Courthouse, Anchorage, Alaska (907) 264-0585/(888) 282-2082 and at the Oral History Collection, Elmer E. Rasmuson Library, University of Alaska Fairbanks, (907) 474-6773.
Digital Asset Information
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Introduction and family background
Coming to Alaska
Territorial days and the judiciary system
Adopting the "Missouri Plan" in 1955
How the "Missouri Plan" affected the Alaskan Court system
Improvement in the system
Alaskans understanding of the judicial system
Need for a Tribal Court
Work history in Alaska
Transition to Statehood and drafting a judiciary system
Raising a family and being a Supreme Court Justice
Personal influences that made him become a judge
Tenure on the Supreme Court
The Alaska court system compared to others
Books that might help someone understand the Alaska court system
Important cases in Alaskan history
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RON INOUYE: Well, thank you Jay, for allowing me to do this brief interview with you right here in your office in Juneau. We'll spend about a half hour to an hour perhaps, talking about a wide ranging number of things.
This is intended to be something that we'll use as a public record, so if there are things that you are apprehensive about discussing; I hope you won't say it. Going back and having to edit things out of tape is very complex so I prefer if we could just maintain things on the record.
I wonder if we could start with some personal background. Can you tell me a little bit about yourself -- where you were born, family, things that were significant to your childhood that eventually got you to your career?
JAY RABINOWITZ: My gosh. I was born on Feb -- I was born on February 25, 1927, in Philadelphia, Pennsylvania. My father was a graduate of the University of Pennsylvania; he met my mother there. And my mother was a graduate of the University of Pennsylvania.
I was the first of three children. Let's see -- my father's parents came in about the 1890s. One from Lithuania, and his father from the Polish-Russian border. My mother's parents came from Germany.
Let's see -- my grandfather on my father's side had a remarkable career; he was mayor of a small town in New Jersey, Woodbine, New Jersey. And during the first World War, he had 800 employees in a clothing -- two clothing factories; he made uniforms for the U.S. military in the first World War.
RON INOUYE: Do you know the names?
JAY RABINOWITZ: Of what?
RON INOUYE: The companies
JAY RABINOWITZ: No.
RON INOUYE: No.
JAY RABINOWITZ: After -- but during the depression, he lost it all, and they moved to Philadelphia. And that's where I was eventually born and spent the first few years in public education, in the Julia Ward Howe School in Philadelphia.
Then we moved to New York because my father was working in the -- it's the only job he could find, in the retail fish business -- no it was wholesale, fresh fish business in the Fulton Fish Market in New York.
And surprisingly, throughout his long career they did business with Alaska, and with the Northwest of Canada, the Great Slave/Great Bear Lake regions. In fact he was responsible for opening the Great Slave Lake and Great Bear to commercial fishing. He financed some of the initial fishermen.
RON INOUYE: What species was he working with?
JAY RABINOWITZ: Whitefish.
RON INOUYE: And why whitefish?
JAY RABINOWITZ: Because of the large Jewish population in New York City. They use whitefish for gefilte fish that was one of the things, then they also got salmon from here. He used to do business with Engstrom, that's a Juneau family. Anyhow.
RON INOUYE: So what years would that have been with Engstrom?
JAY RABINOWITZ: I don't know, the late '40s, or yeah, probably before the second World War. Then what happened, I don't know
RON INOUYE: What about brothers and sisters?
JAY RABINOWITZ: I've got a brother and sister, we're all 18 -- I'm the oldest; we're 18 months apart. My brother went on to art school at Syracuse, then taught art at the Carnegie Tech -- is it Carnegie Tech in Pittsburg? Yeah, and then NYU. And then he went into Broadway productions, doing stage and artwork for such hits as "Beatlemania," etc., etc. And he's still working in the theatre.
My sister married a stage designer; they had 5 kids. My brother had 2 kids -- children. Let's see and my sister's husband -- they just had a revival of one of his movies -- he was art director.
What was it called? I forgot. Anyhow, "Love Story" was one of the big movies that he worked with, with Allie McGraw.
RON INOUYE: Sure.
JAY RABINOWITZ: He was that -- and then with Parks -- with Gordon Parks, the great black photographer and director. He did -- he did several movies, that series with the detective , black detective -- black detective. That just was in town. Anyhow, my sister's husband is art director for that. So --
RON INOUYE: So, what are the names of your siblings?
JAY RABINOWITZ: Robert and Judith Gerard.
RON INOUYE: Judith Gerard.
JAY RABINOWITZ: Yeah and she's had 5 -- 1, 2, 3, 4 -- 4 boys.
RON INOUYE: Is that G-I-R-A-R-D?
JAY RABINOWITZ: G-E-R-A-R-D
RON INOUYE: And what about your brother?
JAY RABINOWITZ: He's had 2 children, Molly and Mark. And Molly's in dance in New York City; she teaches dance, modern dance and performs.
And his one -- their one son is a stockbroker. And his wife is quite an accomplished artist; they've been up here the last 2 summers, my brother and Kathleen.
RON INOUYE: Now what's your brother's name?
JAY RABINOWITZ: Robert.
RON INOUYE: Robert.
JAY RABINOWITZ: They've done some great landscapes of the Juneau area. That's - that's it.
RON INOUYE: Tell me about the process of how you came up here.
JAY RABINOWITZ: Well, I was looking for adventure – that’s about the only way I can sum it up. I had gone to Syracuse, undergraduate, served in the military in the Second World War, back to Syracuse; then to Harvard Law School.
And frankly, was bored with what I was doing in New York, and this job opportunity came along. So I -- I was accepted for a clerkship with the Territorial judge in the Fairbanks area; this was in 1957. His name was Vernon D. Forbes.
And I came up here for a one-year clerkship, primarily to get away from the East and have an adventure. I stayed ever since.
RON INOUYE: Did you have that adventure or is it continuing?
JAY RABINOWITZ: It's continuing, continuing.
Yeah, boy that's a real thumbnail of a -- of up till the time I got here. Okay so, I got here in Territorial days and let me say the Territorial system was terribly lacking from the point of view of an ideal judiciary.
Judge Forbes and all the 4 territorial judges in the Judicial Districts were not Article 3 Judges under the Federal Constitution; they were Legislative Judges. So they only had 4-year terms.
The Alaskan citizen had no say in -- essentially no say, in who got appointed -- no way of evaluating them. And they were just subject to the political whims of powerful Senators. Judge Forbes was -- got his appointment through a Senator from the Dakotas -- I think it was one of the Lang -- Langers.
Anyhow so, with no real control over these judges, we really didn't have a Judicial system in the ideal sense. Judge Forbes would take off for 4 months a year -- just take a prolonged vacation. The calendar would languish, and the cases wouldn't move.
And then the Appellate Court for Alaska was the Ninth Circuit and there was no immediacy, long delays in settling appeals. And it wasn't a very good system. Compared to today's system, it was a rock-bottom system. But we had some great cases in those days, in the early days.
RON INOUYE: What caused that change?
JAY RABINOWITZ: When we obtained statehood. And it really changed in 1955 through the wisdom of the founding fathers who -- not that they were all fathers, there were women delegates to the Constitutional Convention.
Where they -- they rejected the straight partisan election for selection of judges, and they rejected the straight Federal appointment which is Executive appointment, confirmation by the Legislature and tenure -- life-time tenure on good behavior.
So they came up, at that time, with -- which was pretty radical -- which was the -- a Missouri Plan which is merit-selection, merit-retention. This is probably one of the great things that the legislature did because, in my view the Judiciary article is a splendid example of foresight and incredible drafting at the time
A lot of thought went into it but they're -- now there are about 35 states that have some form of our system, and there isn't a single state that wouldn't want our system in full, en toto that we have now.
RON INOUYE: Now it's called Missouri because they initiated that process?
JAY RABINOWITZ: Yes.
RON INOUYE: How many before them had any semblance of that kind of a system?
JAY RABINOWITZ: None.
RON INOUYE: None.
JAY RABINOWITZ: So we were the third state to go the Missouri way. And the beauty of the system is: 1) it provided for a unified system -- we didn't have this system of magistrates whose salaries depended on the fines they collected; we didn't have funding from political subdivisions.
It called for a unified system for administration and control, and it was merit-selection and merit-retention, which means that we got away from the God-awful habit of, not habit but practice of -- in those partisan states, where a judge runs -- runs for his office, he or she has to raise funds. So he or she goes to the lawyers, the insurance companies, unions -- and there's a built-in constituency.
And then a litigant who comes up who's not from that constituency, the appearance is God-awful for that litigant, even though the Judge might be best intentioned, you know, the Judge has been put in office by a certain power group, and the appearance is the Judge owes his or her allegiance to that power group.
Well, so what did our founding fathers do? They provided for a Judicial Council which would screen applicants for every vacant -- judicial vacancy and make recommendations to the governor. The governor would have to select from the 2 or more applicant -- names sent up by the Judicial Council.
And then, periodically, the Judicial Officer would have to stand on his or her record in a retention election. And what this did was take to very, very great extent, politics and the awful practice of having to go out and raise the money, out of the Judicial system.
What it has done over the years, has made the system accessible to those who aren't from old-time families, who aren't politically connected, who aren't wealthy, and have no power base, but have made a record, you know his or her own record that has been fashioned by their -- their performance.
And it's made it accessible to talented lawyers that don't have an initial power.
RON INOUYE: What does that portend though for the role of the Legislature in funding that justice segment? Does that become a point between them?
JAY RABINOWITZ: They shouldn't -- they shouldn't have any role in -- well maybe I didn't understand the question. The Legislature's funding shouldn't be dependent on whether they like or dislike a particular judge or have any say in the selection of judges.
But right now there is a controversy; the Legislature doesn't like certain decisions, recent decisions of the Supreme Court of Alaska so they want to change the system. They want to make it -- the Senate Joint Resolution 15, which would change our merit-selection, merit-retention system and make it an appointive system with Legislative confirmation and retain, strangely, the retention election but at shortened periods. So it's a mix.
But what they want to do is have more control over the Judiciary under the rationality that the Judiciary is lawless; I mean, that's the allegation. It's a very reckless allegation because I think our Judiciary, if you look back, we haven't had a single case of corruption by a Judicial offer -- officer in his or her line of duty.
And if you ask any lawyer, and they answer you honestly, no judge could be approached, you know, for purposes of throwing a case. You know, just the Judicial selection, the Judicial retention-merit-selection, merit-retention system has given us a first-class Judiciary, which, you know, the citizens of Alaska, I think, ought to be grateful for.
Not that it was always like this. It -- it had to mature, and the Judicial Council has matured. Its methodology has improved, and the Court system has improve -- certainly improved its administrative procedures to tighten up and expedite decisions.
RON INOUYE: Don't you think that's very -- that's very healthy though? We're supposed to have Legislative, Executive and Judicial powers that are sort of watching each other and striking some sort of balance.
JAY RABINOWITZ: Yeah but -- surely, I think we ought to have a healthy respect for the separation of powers, and if the Judicial officer is carrying out his or her duties, he or she has to search for Legislative intent or Constitutional intent and give deference in deciding cases to legislative history or constitutional history and follow legislative directives in enforcing regulations, statutes, prior court decisions, constitutional provisions.
But sometimes the wording of the statute is ambiguous or the constitution is murky or it's a broad mandate and there are gaps to be adjudicated. But whether or not we should worry about if the Legislature is going to be pleased or not with a particular construction of an act of theirs is irrelevant.
If you have a judge doing that, the judge no longer is independent but is looking to keeping his or her office and being retained, and carrying favor with a powerful group in the state and that's what we don't want in our judges. We want them to frankly call them as they see them.
RON INOUYE: Do you think that there was a noticeable improvement then, once that Missouri Plan was implemented or did it take quite a bit of time to transition so that we --
JAY RABINOWITZ: Well, for instance the Judic -- yeah, there's been a noticeable improvement. I said growth and sophistication and methodology, for instance, of the Judicial Council. For instance, when we first started, and we got -- we had retention elections, the Judicial Council didn't have much information to present to the electorate.
Now we have the most informed electorate in terms of evaluating the judiciary of any state in the union. And how did this come about? Well, the Judicial Council has these elaborate polls where they conduct surveys of all attorneys, police officers, probation officers, jurors and hold public hearings where they evaluate the performance of, say, sitting judges.
And the electorate knows the results; they're tabulated, they're analyzed and short summaries are put in the election pamphlet. And, you know, we didn't have that initially, but it's a great thing for the electorate to have now.
And on the recommendation of the Judicial Council, I believe 3 or 4 judges up for retention have been defeated. And, once in '64, and that's how I got on the Supreme Court, Justice Arend was defeated in the famous or infamous bar fight betw -- and he lost his seat on the Supreme Court.
And that -- those are the only -- only losses that I can think of, but, it's no sure shot, being a judge; we're not insulated from the pressure of keeping our -- our position because, you know when you decide -- there's always a loser in litigation.
So half the parties that ever come before us, lose. So you have a built-in, adverse, you know, anti-judiciary and it's around about 1/3; some statisticians have figured it out that only takes 17% swing to defeat a judge.
So, you bet, even though for Superior Court Judges, is every six years; for the Court of Appeals, every eight; for the Supreme Court, ten and District Court, four, you know, you worry about that, and you worry about whether you're going to get an unpopular, a politically dynamite case like let's say an abortion case before retention election.
Well, you might lose your seat just through timing.
And if the Chief Justice or the judge is playing according to the rules; he or she won't hold up an opinion until after the retention election, but through the normal flow will release an opinion which everybody knows will be unpopular.
Justice -- now Chief Justice Matthews almost lost his seat by a very slim margin years ago on the Permanent Fund, a case where he -- he dissented from a case that we had where the majority upheld the constitutionality of the original Permanent Fund dividend plan. He dissented, was up for retention, and by about 1% was retained.
I wrote the opinion for the majority, and went up the Supreme Court of the United States and Matthew's opinion prevailed; we were reversed, the only time it was reversed. But we only got one vote -- the majority Chief Justice Rehnquist agreed with us that the plan was Constitutional.
But there you know, passions were high, and there's a brilliant jurist who almost lost his seat under our merit-selection, merit-retention system because of an unpopular decision. And that's the risk that we take, and that's the compromise.
So the public does have a say in retaining our judges. But this was unheard of under Territorial days, and the people really had no -- no idea of the performance or lack of performance of a particular Territorial Judge.
RON INOUYE: Do you see any loose ends currently of things that need to be addressed or worked on?
JAY RABINOWITZ: Well I think we have to -- it's an ongoing process. It's discouraging how little, you know, Alaskans understand democracy, understand separation of powers, checks and balances, and understand the function of a Judicial system. And one, the system -- we have to do a better job of educating the public about what we do, and the need for an independent, but a talented judiciary.
We need a judiciary that appears to be honest, and is, in-fact, honest, and that expeditiously decides cases. So loose ends, yes. Right now we're working on time standards. Discrete time standards that we get cases out even more expeditiously than we are now. And we're way ahead of lots of jurisdictions that have 5- 6- 3-year backlogs in the trial courts before you can get your case to trial, on the calendar.
And the Supreme Court's working on their own backlog; they're going to come out with time standards, which is great.
Another continuing problem is making the system comprehensible not only to urban Alaskans, but for the Native Alaskans living in rural Alaska.
And I'm not talking about the system in the colonial sense. I think one of the glories of our system is that we did go to the bush. At first we didn't have judges in Barrow, in Kotzebue, in Dillingham, or in Bethel. And we didn't ride the circuit to lots of villages. And now we're making a concerted effort to do that. We have elaborate training, intense training systems for magistrates in the bush.
This is -- this is a loose end, but it's even more complicated by the development of the sovereignty movement, and how it's all going to intermesh and interplay. These are very complex, sophisticated problems that are going to have to be addressed by -- by both the Executive branch, the Legislative branch, the Tribes, and the State judiciary.
And right now, I guess it's just -- just starting. The governor's going to have a what, a negotiating team with the -- with the Tribes and they're going to hammer out some sort of compact, but most of it, unfortunately, is going to have to be litigated. That is the subtle, complex issue as to jurisdiction.
But that shouldn't deter the Supreme Court from -- and we have a really -- right now, ongoing efforts to improve fairness and access in the court system, and access, you know, encompasses rural Alaska.
And I'm very pleased that the Court system is with such enthusiasm, and the amount of resources we're pouring into it, focusing again on the bush, continuing to focus on the bush.
RON INOUYE: What's your general opinion about sovereignty within the tribal areas of the state and their attempts to take care of disputes internally?
JAY RABINOWITZ: My general opinion? I think that under the, you know, approach of comity there are areas that we can work with the Tribal courts, particularly in the traditional areas of child custody -- family, family matters.
But, you know, you get 230 villages, they've got to have some sort of police mechanism to enforce judicial decrees. They have to have on-going programs in place for the training of their judges; they have to pour an enormous of resources into that. I don't know if they're prepared to, and can do and sustain it. But, I hope they are, at least in the major Native centers.
Some of the courts I hear are working well, the Sitka Court, Metlakatla seems to be working. But I don't have real first-hand knowledge of the workings of the Tribal courts.
RON INOUYE: Well, it's interesting to see all those efforts being tried and certainly --
JAY RABINOWITZ: Well, yeah, you know, if the state -- if there's a vacuum, l can't, you know, can't blame the locals for trying to fill the vacuum if we're not there and not affording the service.
RON INOUYE: Now Jay, I wanted to get back to some of the personal history before you came to the state. Can you sort of retrace where you were practicing and --
JAY RABINOWITZ: Well, I'd rather start just with Alaska. I was practicing in Fairbanks a very short time as a law clerk, then as an assistant U.S. Attorney, and then we got statehood.
And no one really knew what to do in terms of setting up a state government. And I came down to Juneau to assist the Attorney General in drafting -- implementing legislation so that we didn't have any gap, what they call, fancy name, interregnum, between territorial status and statehood.
And those were really exciting times. You know, no one teaches you how to -- how to become a state, and what you need to do to be a state. And a group of young, very remarkable attorneys, and Governor Egan was the governor, and it was great working down here.
And we were consumed with setting up, just setting up the various criminal divisions, civil divisions, various offices, and getting things in place so that we could -- we could function.
RON INOUYE: Who is "we"? Can you identify them?
JAY RABINOWITZ: The Attorney General's office -- well, John -- John Rader was the Attorney General and George Hayes was head of the criminal division. I was head of -- Deputy Attorney General, head of the Criminal Division.
I was head of the -- Deputy Attorney General head of the Civil Division. And we had people like John Havelock, Bob Erwin, who became a Justice working down here. Gosh i can't remember them all, Herb Soll who's out in the Pacific, remember him?
RON INOUYE: Sounds like quite a group of people.
JAY RABINOWITZ: Yeah. Can't remember most of them. Anyhow, that was -- that was the crew with Governor Egan at the head.
RON INOUYE: Was that a sense of panic, to try get something cobbled together?
JAY RABINOWITZ: No, mostly excitement. And, you know, the thrill of meeting challenges, new challenges. That was a very exciting time, a very novel time. Very few living attorneys have gone through a transition from territorial status to statehood, although there are probably some in Hawaii and some here, still left.
RON INOUYE: So how long did that period last when you were down here?
JAY RABINOWITZ: About 9 months to 12 months, it took us. And then it got started.
And we had a 3 person Supreme Court at the time which has subsequently been expanded to 5. And Chief Justice Nesbett was down here, Justice Dimond, and we had Justice, let me think for a minute --
See this justice, Walter Hodge, he left after 3 or 4 months on the Supreme Court of Alaska, and took the position as a U.S. District Court Judge for the District of Alaska. In short he jumped to the Federal system, off the Supreme Court. This was after, you know, the initial stages.
And that caused a vacancy, and Harry O. Arend from Fairbanks -- there were 2 Superior Court judges initially in Fairbanks. At the start of statehood there was Everett Hepp and Harry O. Arend. And Judge Arend went through the Judicial Council, was appointed to the Supreme Court.
So that left a vacancy in the Superior Court in Fairbanks; and I was Deputy Attorney General down here, and I applied for Justice Arend's position; I think there were 8 other attorneys including Warren Taylor, the father of Bill Taylor who became a superior court judge years later.
Warren Taylor was one of the founders of the Constitutional Convention, drafters. I think Bill Boggess was an applicant then; he's still alive and in Fairbanks. And lots of others -- that I don't remember their names. But, I got appointed.
And that was a very lucky appointment, very fortunate that I -- I had been down here on this 9 month to 1 year assignment. I didn't come down to live in Juneau but just to help out. And I got to know Governor Egan because I had the habit -- Annie and our first child were living in Fairbanks because I was just down here for a short stay -- habit of coming to work early and so did Egan.
So we rode up in the elevator together; he thought I was a very industrious young man (laughter). Little did he know, little did he know, so it was fortunate I knew him. And I got -- I got the appointment.
When was that? Yeah, that was in 1960. So, I was 33 years old, and very, very young -- looking back -- for a judicial officer. But we had a very small pool to pick from. I doubt if Fairbanks had or the 4th judicial district had 30 lawyers at that the time.
My guess is there were only about 150 lawyers in the whole state when we initially got statehood. Naturally, the Bar has become more sophisticated and has grown. We must have close to what, 2,500 active members now. So that's quite a -- quite a growth.
RON INOUYE: Life has become complex, much more complex.
JAY RABINOWITZ: In some areas of the law, yeah.
RON INOUYE: Now what about raising your family through this period. You mentioned that Annie had the baby, and you were established in Fairbanks.
JAY RABINOWITZ: Well, one of the great things was my -- from the point of view of raising a family was getting on the Supreme Court of Alaska in 1965.
An appellate judge can do his or her work at almost any hour; the only time you're really tied to a schedule is when you have oral argument days or conference days. But other than that, you can work at nights so it gave us great flexibility; I could help out in the extremely difficult climate and conditions of Fairbanks in bringing up a family.
And with the flexibility of being an appellate judge, it just made it a lot easier for us, than an 8 to 5 job. I could -- I worked a lot at night after the kids were asleep; with them there was a lot to keep up. It worked out, and it was fortuitous that I got on to the appellate bench so early, and that was in '65. And that's the result of the defeat of Justice Arend that I mentioned previously in the bench-bar fight of '64 -- ' 65 yeah.
RON INOUYE: So at this period, you were starting your family, how did that progress? I know your kids have all gone through the Fairbanks schools and then --
JAY RABINOWITZ: Oh, they had a great education! We had 4 children, 3 girls and I boy. Two are twins, the boy and girl, the youngest.
The Fairbanks schools were remarkable. They've got fine elementary, junior high, and high school educations. And then they went on to fancy private schools back east: Harvard, Dartmouth, Middlebury. And they did very well academically because they had such a sound foundation in Fairbanks.
And in athletics, they had marvelous coaching in the sports that were suited for Fairbanks: swimming and cross-country running and cross-country skiing. So they did very well in athletics. They all could have gone to school on scholarships but decided not to. So they went to schools for an education; but they did compete at the college level too, all of them.
RON INOUYE: Now could you give me their names, and where they're currently residing?
JAY RABINOWITZ: Let's see, Max is one of the twins; he's married to an Alaskan, Lisa Billman. And their -- they both completed medical school, and they're in their residencies in Albuquerque, the University of New Mexico. He's going to specialize in oncology; she's going to specialize in ER.
And let's see, Sarah is the youngest; well, she's a twin. And she's in graduate school in Boston in psychology and social work. Mara got her Master's in psychology/social work, and she's working for the Department of Corrections with Margaret Pugh on special projects, concentrating on, let's see -- programs for women prisoners, mental health programs for women prisoners.
And Judy, the oldest, is a graduate of Harvard College, Harvard Law School, is an Olympian twice. She was with the Department of Justice, Civil Division, Indian Law section. And then after 10 years, she came up here about a year and a half ago, worked for Attorney General Bruce Bohtelo, primarily in Indian Law.
But her husband doesn't like Alaska, doesn't like Juneau so they're moving to San Francisco, and the Department. of Justice wanted her back, so they created a position for her in San Francisco; she'll be starting in about a month. So wait, that's Max, Judy, Laura, Sarah, that's all.
And my wife, who taught for 14 years, 5th grade in Fairbanks, retired, and down here she volunteers at the Museum 2 to 3 days a week -- tour guide, and she teaches 2 or 3 times a week, 5th grade, volunteers at the Harbor View Elementary School.
And I work every day as a retired Justice, they call me a Senior Justice now, but under the Constitution you can take special assignments from the Chief Justice, and he's kept me fully employed.
RON INOUYE: Well, I know it's been a while since you've been down here. How are we doing on time?
JAY RABINOWITZ: Good. We're all right.
RON INOUYE: Good. Okay.
JAY RABINOWITZ: How -- this is of no interest to the story, but continue.
RON INOUYE: I'm curious about some of the personalities here who were, sort of, influential in perhaps driving you to think, reconceptualize things. People who may have just been an influence, in and out of the legal system.
JAY RABINOWITZ: That's a difficult question. Do you want anecdotal tales about great trials?
Let's see, well I think the most profound influence on my life has been the second World War, and the rise of Hitler and the fascistic movement, and the defeat -- the defeat of Hitler, but the impact that had on western civilization, and the direct impact on our family.
We lost over -- well, approximately 200 members of our extended family were killed by notions of a super race. And the prejudice that was rampant when I was growing up was Antisemitism and then the prejudice on the world scene.
Where essentially when it was known, we still didn't do anything about the concentration camps. The indifference to human suffering, you know, I think has shaped me more than anything else, that I don't want to ever do that to anybody else, you treat everybody humanely after you've been on the receiving end, or your family's been on the receiving end of that kind of inhumanity.
So it was a great humanizing influence. And the Antisemitism is a very difficult thing to grow up with. It was difficult even in the military. Within our military I thought at times I was fighting more the forces within the U.S. Army Air Corps than the supposed enemy.
So it was very unpleasant, but yet very instructive in that it shapes your values, and you never want to mistreat another human being after you've seen what's happened. So it makes you more humane, I think.
RON INOUYE: Was that part of the reason that you came north?
JAY RABINOWITZ: No.
RON INOUYE: No. I'm curious what your perspective is on this business of inequity within the Alaskan population.
JAY RABINOWITZ: Well, I think historically it's been an atrocious record of the white man's -- it's nothing less than an invasion of Native Alaska. It started with the Russians and every -- every outsider has mistreated, exploited the local population.
And we're paying for it, paying for it in terms of social costs: the disease, the alcoholism -- well, the attempts to kill local languages and culture. It's just a -- it's a horrible record.
The destruction of Native resources, the relocat -- forced relocation of Natives, I mean, there are very few bright spots in the history of outsiders' treatment of the Native Alaskans.
I'm sure that shapes one who has come in with an experience of, you know, fascism and totalitarian communist system. I've had relatives who had -- were convicted under the communist system without trials and you just don't want that to happen to any people. And that's why I try to instill a humane system in Alaska that treats everyone fairly.
RON INOUYE: What do you think has been significant thing that you've attempted to do during your tenure on the Supreme Court?
JAY RABINOWITZ: Oh, they've been incremental -- incremental steps.
RON INOUYE: Excuse me I need to flip the tape here.
JAY RABINOWITZ: Yeah.
RON INOUYE: We're continuing on with that question about what do you think has been significant about your tenure on the Supreme Court.
JAY RABINOWITZ: Well, there's really not very much interest except to lawyers and judge -- excuse me, and judges.
I guess most -- the thing with the most visibility is changing the focus of the Court system from, you know, an urban emphasis -- everything used to be what Anchorage needs, what Anchorage wants -- to taking care of rural -- rural Alaska and pushing the Court system to rural locations, pushing for the creation of
Superior Court/magistrate positions in areas we'd never been in, and making judges travel.
Having judicial conferences where we had cultural sensitivity, we had Native speakers, trying to get the judges to understand more of what the -- what the problems are in communicating with the Native -- especially the Native defendants when they become enmeshed in the criminal system.
But that's probably the most visible, but over the years it was a slow process, but it was one of professionalizing the administrative aspects of the Court system and the internal working procedures of the Supreme Court. And these are things that are of interest to judges and lawyers but maybe not to the general public.
For instance, within the Court system we adopted procurement rules, personnel rules, pushed for adoption of ethical rules. I set up committees --standing committees that would draft rules -- civil procedures, criminal procedures, evidentiary rules -- so we had on-going committees that changed the rules, that submitted proposals to us regarding procedural aspects.
All the structure we put in to -- into place internally; we set time standards, we developed tracking standards for cases so we wouldn't lose them. We put in place procedures for gathering statistical information so we could make better decisions as to where to use judicial manpower, where we needed judicial manpower.
We professionalized the administrative staff, and we've got some very, very talented people in so that we had budgets that were credible, and we had capital programs that had a little foresight in them -- built court houses before the need became acute in lots of locations.
So these are -- these little things, that standing by themselves don't mean much, but added up to a system that's become first rate in terms of administrative and professional products.
RON INOUYE: Do you ever compare our standards or the way we do things with other locations?
JAY RABINOWITZ: Oh sure. I mean, we go to a judicial conference, and -- on panel discussions -- Justice Fabe just did this on C-SPAN, I understand, Justice Fabe.
But I used to do this at Chief Justice conferences and judicial conferences and explain the Alaska system, and the judges would trip over themselves to get our system. I mean, they wanted every aspect of it, the retention system, taking out the politics, taking out the reliance in elections on power groups, getting an independent judiciary, the evaluation process that we have, and the educational seminars.
I mean we have a first-class system, and we have good facilities; we have first-class back-up in terms of law clerks, all the technical stuff you need in terms of computers, etc. Well we're still working on a state-wide computer program, but yes, in the comparisons we come out very favorably.
There -- most court system participants are envious of us, and I rightly so -- it's a great system.
RON INOUYE: What do you think of the talent pool of people who are available and working within the system?
JAY RABINOWITZ: Well, right now, I think we have probably the most talented Supreme Court in the history of the state.
We've never had 5 justices that are as talented as the ones we have now. It's the strongest Court I think we've had; now I'm talking about legal ability, not humanism or things like that. Let the people judge that. But in regard to legal training, legal analysis, writing skills -- integrity and motivation are a given; it's the strongest Court we've ever had and it's one of the best in the country. It's a great Court.
RON INOUYE: Jay, I notice that we're getting close to the time you need to leave, but I'm curious if there sources that people can consult that you think would be significant to get an understanding of the Court structure here, as well as the things that you have been personally involved in.
JAY RABINOWITZ: Well, unfortunately, no one has written a good history of contemporary Alaska, a good history of the Alaskan Court system, for instance, well, what's his name? Do you know the author of Sold American -- Don Mitchell. This is well researched, a great history of the Alaska Native Land Claims and the early Alaska Native lawyers, the Pauls.
That's a well written history, but we don't have for the general reading population, a real good contemporary history of the Alaska Court system that would make it comprehensible, and interesting to the ordinary reader.
It'd be hard to get it from bits and pieces here because no one sat down and written it. For instance, you know, it's fascinating, the first meeting of the Judicial Council at Nome where the first members of the Alaska Court system were selected.
Judge Fitzgerald's got version that goes on and on and on and how it doomed the Alaska Court system because it split the Court system in a compromise between plaintiff-oriented judges and defense-oriented judges.
And you know, he wasn't very optimistic that the Alaskan court system would succeed, despite his --I mean, it's a great story, and it's a fascinating story. And then, you know, you could spend days talking about the bar fight that led to the vacancy where I got on the Supreme Court where Justice Arend took it on the chin for some of the actions of the then Chief Justice -- Chief Justice Nesbett.
And you know, he -- there were two very fine gentlemen with Nesbett on that Court, and they were under severe attack for the action of the chief justice.
And unfortunately Justice Arend was up for retention election when, at the heat of the -- you know, the very peak of the battle between the Bar and the Supreme Court.
And it was over discipline; it was over Bar funds; it was over rules.
RON INOUYE: Complex, in other words.
JAY RABINOWITZ: Yeah but it's a great story and that could be dug out of -- there's been some articles have been written on that.
But there's been nothing on the early meetings of the Judicial Council; no one's really -- you'd have to go to the Alaska Law Review articles for summaries of some of the great cases over the years of the Constitutional adjudication.
What someone should do is write a good history up to this point of the Alaska Court system starting on the waning days of Territorial days and bring it right up until now, and the attempts to gut the system by some of the conservative members of this Legislature.
It'd be a good read. Like -- have you read Crude Dreams? I think it's a fun read. It's sort of a personal, short history of oil and Alaskan politics.
RON INOUYE: What do you think should go into that history? You probably know, as many if not all of the principals --
JAY RABINOWITZ: I'm not an author; I've never written for the public consumption so if I was writing for the public, I think I'd have to put in a lot of anecdotal tales to make it interesting because I tend to be too technical.
For instance in Territorial days, when I first came to Fairbanks, we had -- Jack Mahler had just beaten the U.S. Attorney's Office in Fairbanks on a tax evasion case. He was defended by Ed Boyko. Do you know that name?
Alright, Ed Boyko used the Patrick Henry defense of no taxation without representation. We didn't have a vote in those days for the President --we were a Territory, right. And the jury loved it -- not guilty. And it became known as the Jack Mahler defense.
Well, unfortunately, George Yeager, who was U.S. Attorney when I was in Fairbanks -- I was an Assistant and Al McGrath was an Assistant, when we go to the office.
He decided to try Sally Christy on tax evasion. She was an exotic dancer/prostitute, alleged prostitute who had various bank accounts under various aliases. So the F.B.I. worked up a case for tax evasion; and there were 6 counts.
And she didn't want a lawyer. The U.S. Attorney in Fairbanks -- George Yeager succeeded Ted Stevens as U.S. Attorney -- George tried the case against Sally Christy, and
Sally got "not guilty" verdicts defending herself on all 6 charges on taxation without representation.
Now, this is the early -- this is before -- just before we got statehood. And George was so mad that the State Troopers, I believe -- Territorial Troopers, we weren't a state yet -- worked up a case of unnatural carnal copulation, used to be called a crime against nature.
And they prosecuted Sally. This time she was defended by an attorney. She lost, and lost her appeal to the Ninth Circuit and served 18 months to 2 years, I think, for a crime of unnatural carnal copulation. That was our revenge.
But, these are famous cases, there was Sally Christy, Jack Mahler, there are lots of famous homicide cases in the early -- the waning days of Territory in Fairbanks.
There was the Ray Wright case, the Bonomassie case -- do these names mean anything to you?
Anyhow, they were fun. Fairbanks had a real pocket of powerful criminals in the early -- well, the late '50s.
And surprisingly we had a high number of homicides which we had to try and they were -- they were great cases. So, you know, those things you remember, you remember some of those early, great cases.
RON INOUYE: I think it would be very valuable though for you to in a moment of reflection, start sketching out what aspects of that history would be valuable to capture, and figure out how --
JAY RABINOWITZ: Well, each one -- each one of the cases I've given you a thumb nail sketch of, are fascinating cases for lawyers.
Fascinating. Do you know, I can't remember the name of that one criminal case that was really great; anyhow, so those were some of the cases.
And we used to argue in the early days about closing hours for the liquor establishments. That's always -- that was always, used to be litigated in Territorial days and early Statehood days. The bar associations -- I mean, the bar owners would fight the closing hours, things like that.
So, and then we've had a lot of cases since then that have been great and that's it. That's the start. Is that enough for you for a start?
RON INOUYE: That's a good start, but I think that you sit in a position where you would have a pretty good idea of what elements should be in a good history. And it's always difficult --
JAY RABINOWITZ: Have you read a good Alaskan history?
RON INOUYE: No, I have not. But it's always trying to collect those bits and pieces that will be of use to someone who is eventually writing that, that and that's, I guess the point of doing oral interviews and capturing what documentation you can because you never know when that opportunity will arise.
JAY RABINOWITZ: Well, I guess, you know, the problem is that you've got such a small population, you really can't expect to -- unless you've get major funding -- to have someone write a real in-depth history. It's got to be a labor of love.
RON INOUYE: That's right. Someone who is very committed to that -- that topic initially. Well, it's past five and I thank you very much.
JAY RABINOWITZ: So, you've got a full schedule -- thank you -- tomorrow and the next day? And so do I.