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Judge Tom Stewart, Interview 2, Part 2

This is a continuation of the interview with Judge Tom Stewart on October 25, 2002 by Margaret Russell in Anchorage, Alaska. This is a continuation of tape number Oral History 2012-02-13, Part 1. Judge Stewart was also interviewed by Margaret Russell on September 20, 2002 in Anchorage, Alaska (tape number Oral History 2012-02-12). In this part of the interview, Judge Stewart talks about Alaska Statehood, setting up the state's first court system, selection of judges, and the Alaska Court/Bar Association fight.

Digital Asset Information

Archive #: Oral History 2012-02-13_PT.2

Project: Judges of Alaska
Date of Interview: Oct 25, 2002
Narrator(s): Judge Thomas Stewart
Interviewer(s): Margaret Russell
Location of Interview:
Funding Partners:
Alaska State Library, Institute of Museum and Library Services
Alternate Transcripts
There is no alternate transcript for this interview.

After clicking play, click on a section to navigate the audio or video clip.


Mr. Lehleitner's motivation for lobbying congress to make Alaska a state

The Speaker of the House, Sam Rayburn, and his role in Alaska's statehood

Being the chairman of the Committee on State Affairs in the first state Senate after statehood

Running for re-election and the recount that ensued

Working in the Senate on executive and judiciary system development

Setting up the government after statehood

The Judicial Council and the Alaska Supreme Court

Deciding on a Chief Justice

Setting up the court after statehood and initiating the use of a tape recorder in the court room

The importance of Buell Nesbett's work getting the court system off the ground

Supreme Court and Bar Association dispute

Federal Court decided the case and adopted the Washington system

Other significant events during his time as Court Administrator

Justice Rabinowitz and the structure of the Alaska Court 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.


MS. RUSSELL: You talked about Mr. Lehleitner who had lobbied the delegates to convince them to elect provisional delegates to the Congress -- lobbied the convention delegates, to lobby the Congress with respect to admittance to the Union. What was Mr. Lehleitner -- Lehleitner's motivation in doing this?

JUDGE STEWART: Well, I -- I had many discussions with him. We became good friends over the period of his being there and subsequently until his death. He was -- it was a very unselfish motivation.

He had been a successful businessman. He owned the Louisiana division of the Armstrong Cork Company, which is a major national manufacturer of flooring products. And he was the distributor of the Armstrong cork products. So he'd made a lot of money.

But during the war he was a lieutenant commander in the Navy assigned in Hawaii. And while he was there, he learned about the Hawaiian aspirations for statehood.

And he got well acquainted with the -- with Joseph Farrington, who was the delegate to Congress from Hawaii, and with his wife, whose first name I can't recall. And ultimately when we got statehood, Joe Farrington had died and his wife had succeeded him, had been elected as the delegate from Hawaii and I --

MS. RUSSELL: From the Territory of Hawaii. JUDGE STEWART: Territory of Hawaii, and I had met her. And he knew them well and he knew the desire of the Hawaiians for statehood.

And he felt that -- he told me this in so many words; that his country had been very good to him in his business and his military career and that he wanted to do something in return for his country and for the Hawaiians, who had been very good to him during his tenure there in wartime, World War II.

And so he set about promoting statehood. And I told you already that he got Senator Earl Long from Louisiana to get the Legislative Reference Service of the Library of Congress to research the history and he learned of the process that began in Tennessee and that served the last nine territories admitted.

So that was his motivation. And when the Hawaiian convention of 1950 failed to adopt what he believed was critical to persuade the Congress, he came to Alaska and sought to persuade, as I've already recited I think, his effort to persuade the Alaska delegation to the convention, constitutional convention to adopt the plan.

But it was a very unselfish, public-minded, public-spirited motivation. MS. RUSSELL: So he gave his time and bore his own expenses in this endeavor? JUDGE STEWART: Bore all of his own expenses. Nobody ever helped him with expenses.

His travel, both trips, his rental of the apartment in Fairbanks, living in Fairbanks, all of that. And I have -- I don't know this, but my suspicion is that when he got back to the East Coast that he lobbied in Washington.

MS. RUSSELL: Did you ever talk to him after statehood was -- JUDGE STEWART: Oh, yes, I visited with him in New Orleans on one occasion and I talked with him by telephone otherwise. And of course he was delighted the fact that we got it and I think he felt that it was important.

But there's a little footnote that I should add there. I think I already said that Bob Bartlett was not very favorable to the Alaska/Tennessee plan and I'm guessing, but I think he viewed these three people, Ernest Gruening and Bill Egan and Ralph Rivers, who were the provisional delegation,

in a way as treading on his turf because he was the duly elected official representative of the Territory of Alaska in the Congress.

And here were these outside people who had no delegated authority from the legislature except the money they had given them and this -- the authority of Ordinance Number 2 to act.

And I think that maybe some of them, probably Ernest Gruening, trod on his toes a little bit and he was not happy. And sometime after statehood, I had an occasion to talk with Bob, who had been my next door neighbor in Juneau at the time that he was elected to be the delegate to Congress in 1944.

After statehood, sometime in the 1960s before he died, I said, Bob, how important was the Alaska/Tennessee plan to getting statehood? And his reply was, it neither helped nor hurt. Alaska got statehood when Sam Rayburn changed his mind.

Now, Sam Rayburn was the speaker of the House and the second most powerful personality in government in the nation. And the southern senators who had been, as it were, stick in the muds over the statehood issue held a great deal of respect for Sam Rayburn. He was a southerner, he was from Texas.

MS. RUSSELL: Why were the southerners opposed? JUDGE STEWART: Well, they were the senior members of the Senate. They were the chairmen of the principal Senate committees because they had the longest tenure.

The chairmanship of Senate committees goes substantially by tenure. And the southern senators were Democrats and they were the chairpeople of the committees.

They feared the weakening of their authority by adding four new senators, diluting their strength and the unpredictability of what they were going to be. Now, at the time, and I'm sure that this was a factor in the circumstance that Alaska got statehood first before Hawaii,

the Alaska delegation to the Congress, Bob Bartlett, the delegate, and these three people, Ernest Gruening, Bill Egan, Ralph Rivers, the provisional delegation, they were all Democrats and, therefore, accepted by the southern Democrats who held those positions of authority.

Hawaii, the Farringtons, were Republicans. And the chairman of the Hawaiian Convention was Sam King. Samuel King had been the governor of Hawaii, and I'm not certain, but I think he might have been a Republican, too.

But they -- I think Hawaii lost in the Senate in 1950 after having passed the House because they were Republicans and the Senate was Democrat.

MS. RUSSELL: Why did Sam Rayburn change his mind? JUDGE STEWART: I can only guess, but my guess is the most influential person in bringing him around to change his mind was Harry Truman.

When Harry Truman was elected president in 1948, on his own, because he had been -- he had moved up from the vice presidency when Roosevelt died, 1948, he won the election against all predictions.

I remember, he's holding up that big headline from the Chicago Tribune, Dewey wins. And Dewey didn't win, Harry Truman won.

And in his first address to the Congress, the State of the Nation address in 1949, he advocated the admission of Alaska and Hawaii to statehood. He was the first president to do that.

When he was succeeded in 1952 by Dwight Eisenhower, Eisenhower didn't really favor statehood.

Eisenhower rather grudgingly I would say agreed that maybe Alaska could be divided and from Fairbanks draw a line across Alaska at the lit -- at the latitude of Fairbanks.

Everything south of that might become a state, but everything north of that should be under the federal control because of its military significance, the White Alice System, for example.

And Eisenhower was not an enthusiastic supporter of statehood. He signed then proclamation declaring Alaska to be a state, but that was after the Congress had passed the legislation. Truman wasn't -- was a solid supporter.

MS. RUSSELL: Did Truman -- JUDGE STEWART: And Truman -- MS. RUSSELL: -- explain why? JUDGE STEWART: -- was very close to Sam Rayburn. And I don't have any evidence of this.

The only evidence I have is Bob Bartlett's statement to me, Alaska got statehood when Sam Rayburn changed his mind. And my guess is that Truman was instrumental in that.

MS. RUSSELL: Did Truman say why he favored it, statehood? JUDGE STEWART: I can't remember the detail that he -- I'm sure he did -- MS. RUSSELL: Uh-huh (affirmative). JUDGE STEWART: -- when he spoke to the Congress. I can only remember the bare fact that he advocated it in his State of the Union address to the Congress.

But those two fellows used to play poker together -- MS. RUSSELL: So you can draw -- JUDGE STEWART: -- in Washington. MS. RUSSELL: -- your conclusions. JUDGE STEWART: I saw them playing poker in the Cosmos Club.

It was a back room in the Cosmos Club, which was a gathering place for prominent Washington figures and I was invited to dinner there by Ernest Gruening, who was a very dear friend, he was a neighbor and we worked together on the statehood effort.

And I was -- I saw in the back room these fellows playing poker. And I think that Harry Truman and Sam Rayburn played poker and talked about what was going on in politics. This is all guess work.

MS. RUSSELL: Yeah, but you did see the two of them playing poker? JUDGE STEWART: Yeah, and I saw -- I know that Truman advocated it --

and it was only a few years later that Rayburn evidently changed his mind. And it was Bartlett that told me that that was the critical factor in the passage of that bill because he brought along southern Democratic Senate chairmen that had been unwilling previously.

MS. RUSSELL: Okay. Well, let's talk now about the transition from federal control of the Territory of Alaska to the state's independent government. What was your role in that process?

JUDGE STEWART: Well, I was the chairman of the Committee on State Affairs in the first state Senate. MS. RUSSELL: And you were yourself elected to the Senate?

JUDGE STEWART: I was elected to the Senate. The first State Senate was divided. Half of the members were elected for a four-year term and half were elected for a two-year term.

And I chose to run for the two-year term. So I was -- I served actually in the 1959 session right after statehood, January 3rd, '59, and I served in the 1960 session of the first -- both were the first state legislature.

In my personal history, I ran for a full four-year term in the election in the Fall of 1960, for the second session which began in January '61.

In the state legislature at that time there was no limit on the length of the session and in '59 we had a long session.

I think it was probably at least 120 days, maybe more because we had so much work to do to establish the executive branch, perfect the establishment of the legislative branch and to write the legislation to create the judicial branch.

It was a lot of work to do and we had a lot of technical help from the contract with Public Administration Service. They sent people to help us draft that legislation and express the transition.

And one of the interesting things that happened, for example, because that draft legislation was in the committee that I chaired, the Committee on State Affairs, we were concerned about setting up the executive departments.

And I and others favored keeping that to a minimum to make the cabinet more workable for the governor, he didn't have to deal with two dozen people in his cabinet.

It would consolidate the cabinets and as I recall we were contemplating nine departments. And I remember a good friend of mine, a lawyer in Juneau, came to me very unhappy because we proposed a Department of Commerce and Labor, a single department.

And this gentleman who was a lawyer, practicing lawyer in Juneau, he's long dead, I won't use his name, was -- represented the business interests and they didn't feel at all comfortable having one department administering both commerce and labor and pleaded that we separate that.

And we did. There's a Department of Labor and a Department of Commerce. But they're all part of the cabinet and the governor has authority over all of them, single executive authority.

But that was on of the things that came up in the transition -- MS. RUSSELL: And did the cab -- JUDGE STEWART: -- how many departments will we have. And I think we ended up with something like 10.

I think there are now probably 12 or fif -- 12 or 14. There have been additions. There are departments that didn't exist in the first one.

There's an area that I felt at the time, but didn't get a chance to address it in the two years that I served, and that is that there should be a very strong department of local affairs to help the development and organ -- to explain the nature of boroughs and cities and their relationships and help to develop a good pattern for that.

And also to provide technical aid to rural local governments, the Native population that didn't have experience or sophistication of engineering, health systems, the road systems, you know, and all the aspects of governmental responsibility.

And I had -- I wished that I might have served in another session. I ran in 1960 and I won the election by one vote.

And my opponent asked for a recount, which he was entitled to, and in the recount I was present when -- these were hand ballots and the secretary of Alaska was Hugh Wade, so had pile of ballots and he would move them to Stewart, Engstrom, Engstrom, Stewart, Stewart. And I lost by two.

And I had legal right to a further recount by the Senate, which was solidly Democratic. They were my friends, I had worked with them for two years, '59 and '60, and I could expect them to be friendly to whatever I wanted to do.

But I decided that I would be a poor loser unless I knew that I was going to win. And the only way that I thought I could know that was there were about a dozen absentee ballots that had been rejected by the local Election Committees.

And I thought if I could talk to the electors of those ballots and find out how they voted, then I could find out whether I would win or lose on a recount because I thought the recount up to that point had been correct.

And my opponent, who was Senator Elton Engstrom, had a son, Elton Engstrom, Jr., who was representing him at the election. He had been graduated from the Harvard Law School.

And I had helped him to get into Harvard Law School and his father and I and he were all personal friends, but we were on opposite political camps.

So I set about to try to canvass the voters. The first one that I went to was an old Austrian carpenter by the name of Carl Meyer (ph). And he had fallen from a roof and broken both of his legs and he was in the hospital.

And I went to him and I said, Carl -- I'd known him for years -- how did you vote in the Senate race; did you vote for Engstrom or for me? He said, I can't remember.

And I said, Carl, I don't care how you voted, Engstrom is a personal friend of mine and if you voted for him that's all right with me. I just need to know how you voted, because I thought his ballot was one that I could legally establish a right to count that had been improperly rejected by the committee.

I can't remember. I tell you what, you go get another ballot and I vote for you. So that one was out.

And then there were two ballots cast by two electors in the Village of -- it was either Elfin Cove or Pelican, a little village out on the west coast.

And this was a couple that had lived in the village -- I think it was Elfin Cove -- for 25 or 30 years. Now mind you, this was the presidential election of 1960 when John Kennedy was running against Nixon.

A presidential election of 1959 that determined the president as of 1960. And they had moved, these two electors. They had moved to Seattle, sold their home and had gone south.

But the only way they could vote for president was if they voted in the state of Washington and they hadn't been there long enough to establish a voting residency.

And I'm surmising that what they did was to think, well, they -- it was all right for them to vote for president because they -- Alaska was now a state and it would be the first chance they ever had, because up until January '59 they were a territory and they couldn't vote for the president.

So I stipulated with my -- with Engstrom's son that we would open these two ballots and see how they were voted and see if it made any difference.

Husband and wife, one for Kennedy, one for Nixon. So I thought -- I discussed it with my wife and I decided that I wasn't getting anywhere looking at these ballots and I was not being successful in a private law practice because I was spending so much time as a senator working on constituent problems and otherwise, that I was not providing my family with a decent living and that I should give it up.

So that's what happened. And that -- my little personal part in the transition.

MS. RUSSELL: You were in the Senate though, you were involved in the establishment of the executive, but you also worked on the judicial -- JUDGE STEWART: Very much so. MS. RUSSELL: -- system, right? JUDGE STEWART: I was on the Committee on the Judiciary as well as being chairman of the Committee on State Affairs.

And the chairman of the Committee on the Judiciary was Ralph Moody, and Ralph and I had done things together in the Democratic Party.

We were good, close personal friends and so we worked together in constructing the judicial article.

And as I told you I think before, we anticipated it would take two to three years to take over the judicial function, but the Parker v. State case in the Ninth Circuit that we discussed already, when the decision was handed down by the Ninth Circuit that they'd have no jurisdiction, that Parker had no right of appeal, we had to implement this -- the judicial system right away.

MS. RUSSELL: Well, you got it off the ground how? How did you -- JUDGE STEWART: Well, the judicial -- MS. RUSSELL: -- get the -- JUDGE STEWART: The Judicial Council met in June.

MS. RUSSELL: How did the Judicial Council come about? JUDGE STEWART: The governor had appointed them.

MS. RUSSELL: So the governor was elected -- let me go -- back up a little bit. When was the governor elected; at the same time as the legis -- first legislature was elected?

JUDGE STEWART: Yes, in the election of November 1958, five months after the Congress had -- or about -- yeah, July, August, September October, November -- five months after the Congress had authorized statehood and the people had approved it in August. And so the new legislature was elected --

MS. RUSSELL: And the governor was elected. JUDGE STEWART: -- and the governor was elected. He quickly became seriously ill, very very nearly died. They had an emergency evacuation to the hospitals in Seattle. MS. RUSSELL: Remind me who that was. JUDGE STEWART: Egan. MS. RUSSELL: Okay.

JUDGE STEWART: Governor Egan. And his place was taken by the secretary of state, which later was redesignated as the lieutenant governor. But that was some years later that they changed the name of the office from secretary of state to lieutenant governor.

But anyhow, I don't know -- I think his illness was a little bit later than that, it was early on in his term, his first term. And -- MS. RUSSELL: But he appointed a judiciary -- the judicial council, right? JUDGE STEWART: The Judicial Council -- MS. RUSSELL: How many members of -- JUDGE STEWART: It had six regular members and the chief justice was ex officio the chairman.

Three members were appointed by the governor for overlapping 60-year terms so that no one governor would control that segment of the council. MS. RUSSELL: And how was it -- JUDGE STEWART: Katie Hurley is a member of the council right now -- MS. RUSSELL: Oh. JUDGE STEWART: -- the Judicial Council. MS. RUSSELL: And how was the Supreme Court -- JUDGE STEWART: And the other three members were designated by the Bar Association.

And incidently, the consultants to the convention, John Bebout, Kimbrough Owen, Emil Sady, and some others came to me as the secretary of the convention and said we're concerned about some of the provisions of the constitution that is proposed,

and we have carefully abstained from trying to tell the committees what to do, but we think we should make our views known that there are some weaknesses.

And they wrote -- and I said, well, what you should do is write a letter to the president and ask for an opportunity to meet with the Steering Committee, which is composed of the president and the chairman of each of the standing committees of the convention.

And ask for an opportunity to sit down with them and tell them what's your concerns and put your concerns in a letter so they know.

And one of the concerns was that the basis for determining the members of the Judicial Council is too narrow.

The Bar Association has too much authority, it has three votes, and because they are pros as lawyers, they are likely to be able to persuade the citizen members to their point of view and it's too narrow a base for the selection of judges.

At first I think it was a valid criticism, but they had several other things that they were concerned about and the Steering Committee determined that they wouldn't touch any of them. All of the points had been debated in the plenary sessions and had been considered and they thought it was too late to go back and rehear.

MS. RUSSELL: And before we -- JUDGE STEWART: But anyhow -- the three members of the Judicial Council by the governor were Dr. Whitehead and a man from Seward whose name at the moment I've forgotten, and a man -- and John Cross from Kotzebue.

They were the three lay members of the first Judicial Council and then there were three lawyer members. And the lawyer members were chosen by the -- ­not by a vote of the lawyers in the convention, but by the Board of Governors of the Bar.

And that was part of why the consultants thought the basis for nominating judges was too narrow. It ought to have a broader representation.

But anyhow, they met because -- when the Parker decision came down, the legislature was still in session as I recall, and we put some language into the statute that speeded up the whole process of establishing the judiciary. And they nominated the candidates --

MS. RUSSELL: Including the Supreme Court justice; did you say there was a Supreme Court justice who sat on the council as ex officio? JUDGE STEWART: There is today. MS. RUSSELL: Oh. JUDGE STEWART: There is today. The chief justice is the -- MS. RUSSELL: Was there then? JUDGE STEWART: -- is the -- is ex officio, the chairman of the council, but has no vote -- MS. RUSSELL: But at that time -- JUDGE STEWART: -- except to break a tie.

MS. RUSSELL: I see. JUDGE STEWART: Now, there -- at that point, there was not a chief justice. The council had to nominate candidates and they nominated six candidates including Buell Nesbett,

and including Walter Hodge, who was a federal judge who came from Cordova and was a good friend of Bill Egan's, Cordova and Valdez being close neighbors, and he was the federal judge for the Second Judicial District at Nome.

And Walter Hodge was a member and then John Dimond was nominated -- was nominate, and those three -- there were three others nominated including a man from Ketchikan by the name of Bill Stump who thought he had a good chance to be the chief justice.

No, I think Bill -- no, his brother -- or his half- brother, Ernest Bailey, was on that first Judicial Council. He was promoting Stump and also Mike Monagle, who was the Robertson -- who was the Monagle in the Robertson, Monagle, Eastaugh firm.

And he thought he was in line to become the first chief justice. But Bill Egan had a different view. And there's nothing in the constitution at that time to say how the chief justice would be chosen.

And when Bill Egan named those three, Nesbett, Dimond, and Hodge to the Supreme Court, he said and I appoint Nesbett to be the chief justice. And there's nothing in the constitution that said he had that authority.

And later on when Nesbett got in a big fight with the Bar Association, the Bar got an amendment to the constitution that provided a five-man court instead of a three-man court -- person, I should say, not man -- and that the chief justice would be elected by the five members of the Court for a three-year term and could not succeed himself.

So there was -- there is now a provision in the constitution for selecting the chief justice that wasn't there initially. Bill Egan on his own said the chief -- I appointed Buell Nesbett to be the chief justice, John Dimond, and Walter Hodge. And Walter Hodge and probably John Dimond assumed that the headquarters of the Court would be in Juneau because it was the capitol.

But Nesbett had a different view. His home was in Anchorage. His family was in Anchorage. He owned an airplane and his recreation was flying out to wilderness lakes and rivers and fishing and hunting. And he didn't want to alter his lifestyle.

So he determined that the headquarters of the Court would be in Anchorage. And he hired the first administrative director. It was a man named David Luce from California that had been recommended to him by Warren Olney.

Olney, O-l-n-e-y, was the administrative director of the United States courts and he helped Nesbett in the formation of the court system. And I worked with him, too, when I became administrative director a couple of years later. But he had -- he hired a man named David Luce from California who had experience as a court administrator.

And it was a good thing that he did because he -- he brought that experience to the initial formation of the courts. And the first thing that had to happen was the designation of the Supreme Court and then the designation of the trial judges.

And that was accomplished, the Council offered Bill Egan the names, two for each position. There were nine Superior Court judges. The District Court judges were not named by the Council.

At that time in the initial first several years, District Court judges and magistrates and deputy magistrates were chosen by the presiding judge of the district which they were to serve. So there were only the three justices of the Supreme Court and then immediately following that, the judges of the Superior Court.

And when they were all named, as I said earlier today at the meeting of the Bar lunch, they all went to New Jersey and got some education in what their jobs were. And the court system was established and began sitting on February 20th, 1960.

And Warren Olney helped Nesbett to take over the federal court facilities because we didn't have any territorially-owned facilities.

MS. RUSSELL: You had no courtroom, no library? JUDGE STEWART: No courtroom, no libraries, no personnel.

And Olney and Nesbett negotiated an agreement that the state would take over the federal courts and use them as state courts.

And also, they -- there were no court reporters. And Nesbett was faced with the problem of court reporting. And he had been the captain of a destroyer in the Navy during World War II and he had used a recording machine.

It had a broad magnetic tape and a small reel and it played very slowly. And as the reel turned, the recording head would move back and forth in a straight line, but because of the movement of the tape, the recording was in a -- an angular system.

And these tapes, every ship had one, these electronic tapes recorded radio transmissions. And Nesbett conceived the notion that all recording in the state's system should be electronic because there were only four court reporters in the federal system

and at least three of them were ready and eligible for retirement or to transfer to the new United States District Court, the constitutional court that had regular constitutional United States district judges.

So the Territory -- the new state was basically without a cadre of experienced court reporters. And the stenographers that might have been eligible for it were not very happy and the National Association of Court Reporters, who are all stenographic reporters, were not at all happy with the fact that Alaska recorded the record of trials and of appellate arguments on tape.

MS. RUSSELL: So the tape system was -- JUDGE STEWART: It started right at the beginning -- MS. RUSSELL: Yeah. JUDGE STEWART: -- by the imagination of Buell Nesbett. MS. RUSSELL: And with no steno backup, it was purely a tape system. JUDGE STEWART: That's right, it was purely a tape system from the beginning.

It was a company called Sound Scriber and they adapted their machines to the Alaska system. Nesbett was very busily at work from the time he was appointed in July of 1958 until -- and it was through '59 -- he wasn't appointed '58, he was appointed in July '59.

And the court system became operative on February 20, 1960. In that eight months period between his appointment and the time the city -- the system was activated, he was extremely busy setting up the mechanism for the operation of a state court system.

And I think today's lawyers don't recognize quality and the value of the work that Buell Nesbett did. His image was subsequently blackened, tarred you might say, by the big fight that took place between the Supreme Court and the Bar Association in 1964.

And I was very close to that as administrative director, the office that I held from September of '61 when Dave Luce went back to California until I was appointed to be a judge in November of 1966.

MS. RUSSELL: And I think you -- JUDGE STEWART: And that was a sad era in the history of the Bar. And Nesbett was bitterly disliked by some elements of the Bar because of the circumstances surrounding that fight.

And it has -- MS. RUSSELL: Can you tell us a little about that fight? JUDGE STEWART: I can, but it -- let me first say that I think that it's sad that his image was diminished by that because he did an absolutely tremendous, outstanding job that I saw at firsthand when I came on as administrative director.

And I was his right-hand man for administration for the ensuing five years of organizing the court system, getting it off the ground, arranging all the furnishings, all the equipment, all the systems, and hiring personnel in all of the locations to administer the state courts.

The whole system was set up under Buell's personal energy and vision and functions. And I was fairly instrumental in persuading the then Supreme Court when the building down the street was built and hadn't yet been named, in persuading the Court to name it the Nesbett Court Building.

MS. RUSSELL: And you're talking about the new Superior Court building? JUDGE STEWART: The new Superior Court building.

This building was named the Boney Building because George Boney had been the chief justice succeeding Nesbett and when -- at a time when Nesbett was viewed with some distrust after he -- because of an airplane accident was physically disabled and had to retire.

Boney didn't have anything like the influence of Nesbett in building the court system. It was built by Buell Nesbett, aided by John Dimond and for a time by Walter Hodge, who was the other first member of the three-member court.

But Hodge and Nesbett got into a bitter argument. Hodge thought the Court should be in Juneau. And when he was appointed, he went to Juneau, bought a home, prepared to live there, and Nesbett made the decision to put the headquarters in Anchorage.

And Hodge was very much opposed. And not long after that, he got the opportunity to take a vacant federal judge position and he resigned from the Supreme Court.

And that's when Harry Arend from Fairbanks was appointed to that vacant seat and Hodge became a United States district judge. And there's a lot more history about that. But in any event, that's the way those circumstances evolved.

MS. RUSSELL: And you talked about -- I think you called it the Court/Bar -- JUDGE STEWART: I did. MS. RUSSELL: -- dispute.

JUDGE STEWART: Well, there were several sources that gave rise to that. There was a senator from Ketchikan by the name of Bo Smith.

And there was a case that had arisen in Ketchikan involving a lawyer there who had, in the view of some people, at least, had failed his responsibilities to his clients. I don't remember whether it was dishonesty or not. I should remember because I was on the Bar Committee in the Southeast that heard the case.

The man's name was Floyd Davidson. And the -- this senator from Ketchikan was disturbed about the delay in a decision in the Davidson case. And he got the Senate, not the whole legislature, but just the Senate to pass a resolution asking the Supreme Court to make clear whether the Bar Association was under the authority of the Supreme Court or under the legislature.

At the same time, there was a difficult case here in Anchorage involving a lawyer named Neil McKay. The McKay Building in Anchorage is named for him. And Neil had been an undertaker and he was admitted to the Bar, and I'm not exactly sure how, whether he was a graduate of a correspondence law course or something, and I say that somewhat advisedly because I knew Neil well.

And later on he was charged with the murder of his wife's brother. His wife was murdered by someone planting a bomb in her car. She was killed by that explosion and they never had enough evidence, the police never had enough evidence to determine who was responsible.

But she had wanted the custody of the son of their marriage not to go into Neil McKay's hands. And her brother took custody of that youngster. And he was shot and killed, car drove up alongside him, a man pointed a pistol out and shot him and killed him.

And Neil McKay was tried twice because the man who fired the gun said I was hired by Neil McKay. But he had a very competent lawyer and the first case resulted in a mistrial because one of the clerks in the court in Fairbanks, Judge Meg Green's court, took a document into the jury room when they were in deliberation that wasn't supposed -- it was not in evidence and it was not supposed to go to them.

And Judge Green determined that it was cause for a mistrial. He was retried and he was acquitted. But he had been accused of basically stealing from a client, a woman, that had been a client of him as a lawyer.

And the Bar Committee I think had not imposed any penalty. Nesbett, who was privy to the inner workings of the local Bar because he'd been a member for years, was very disturbed about that and he took that case and they imposed a discipline on Neil McKay. I think they even disbarred him, I'm not sure.

But he was very, very unhappy about what the Supreme Court had done with that case. So there were these two elements combined, and Nesbett responded to the resolution that the Senate had passed at the instigation of this legislator from Ketchikan whose name was Bo Smith, Senator Bo Smith, and then asked the Supreme Court to do something about it.

So he hired a lawyer from Anchorage named Burt Biss to draft a proposed set of rules of the Bar that made it clear that the Supreme Court had the authority, ultimate authority over the Bar Association and it provided a whole new set of rules of discipline for the Bar.

He asked me as administrative director to review that draft that Burt Biss had written. And I reviewed the Bar rules from several jurisdictions and one of them was Michigan. And it was clear to me that Burt had used the Michigan rules as the basis for what he drafted. But he left out an essential element of the New Jers --the Michigan rules.

In Michigan, when a lawyer was charged by the Bar for an ethical violation, a trial -- the Bar had the prosecutor to prosecute the charge, but the trial was before a panel of three trial judges from the trial court in Michigan; one from the district in which the lawyer served and two from other districts.

And that panel was selected by the administrative director of the courts, and they determined whether the charge was valid, and if so, what the discipline should be. And then both side had a right of appeal to the Michigan Supreme Court from that result.

In this draft, Burt Biss left out that intermediate process. When a lawyer was charged, the trial would be by the Supreme Court and there was no appeal because it was by the Supreme Court. And the Bar was very unhappy with that proposal.

Nesbett got the other two justices, Dimond and Arend, to approve of this draft of these proposals, rules -- new rules of discipline. And he sent them to the Board of Governors to be put into effect by the Board of Governors.

And the Board of Governors refused. And I -- Nesbett consulted with me about it and I tried to persuade him that he should not do that, that the Biss draft deprived the Bar of a right of appeal, that it ought to be done by an earlier stage and it was properly done by -- in accordance with the Michigan rules, by professional judges who had experience in judging.

But he wanted to get the job done. Buell was -- has in his experience been the captain of a Navy ship. And the captain determined what happened on the ship. And he was running the ship of state and he wanted that done this way. He sent the rules to the Board of Governors and the Bar and they refused to do it.

And he discussed it with me to an extent. I tried to persuade him that he was wrong, but I was unsuccessful. And -- but at that point, he said, well, I'm going to take over the Bar. And I said, well, you can issue a writ of sequestration.

You can sequester the funds of the Bar, they're in a bank account in the First National Bank. And you can sequester all the records of the Bar which were in the possession of a lawyer named Peter Kalamarides, who later became a Superior Court judge.

And he had a couple file cabinets with all the records of the Bar, the applicants for the examination and so forth. And so Nesbett directed me to go with them -- to go with the police officers to execute this writ of sequestration.

We went to Kalamarides' office loaded up the files and brought them to an office in the court building, and there was a lawyer working for the court system by the name of Ernest Rehbock, R-e-h-b-o-c-k. I don't know whether he's still in practice here or not. I think he's still alive and his -- I think one of his -- one or more of his sons might be practicing.

But he appointed Ernest Rehbock to be the trustee and administer the affairs of the Bar until the Board of Governors complied with the direction of the Supreme Court. And the police officer went to the bank to collect the funds. And he instructed me to go with him to the bank.

So we went after 3:00 o'clock in the afternoon and in those days the banks closed at 3:00 o'clock. After 3:00 o'clock we went into the rear door of the bank and served -- the officer served the warrant on the cashier -- that is, the writ of sequestration demanding transfer of the funds to the custody of the trustee of the Bar as appointed by the Supreme Court.

MS. RUSSELL: And it was -- it's Justice Nesbett who directed you to go with him? JUDGE STEWART: Yes. MS. RUSSELL: Oh, okay.

JUDGE STEWART: I was uncomfortable because, you know, I was not an officer of the public safety system. It was a state patrolman, state police officer who served it. The night before this occurred, I was at a cocktail party with a lawyer by the name of Roger Cremo, who was the lawyer for the bank.

And when we went into the bank, the cashier called up Roger Cremo and he asked the cashier to put me on the phone. And I talked with him. And he said, I have a real concern whether this is a valid writ and whether we should comply with it or not, and I'd like to think about it overnight and you can come back in the morning before we give you any money.

So I said, okay, Roger. And I thought I might still have an opportunity to dissuade Nesbett from this very direct action. I got back to his office and told him what happened and he chewed my tail. You had no business doing that, you should have taken that money.

But I went back in the morning. We went -- the banks opened at 10:00 o'clock, went back at 9:30. A police officer was with me. I went to the cashier to get the money and they had the check already written. And he was talking to Roger Cremo on the phone.

And Roger Cremo said, does the officer have a gun? And the officer looked at me and I shrugged my shoulders and he opened up his coat and there was a gun under his coat, and he closed his coat again. And Cremo said, did he point the gun at you?

And the cashier said, no. And he said to the officer, the attorney says you should point the gun at me. So he took his -- I shrugged my shoulders, and he took the gun out and he didn't put this hand inside the trigger guard, but he pointed the gun and put it back in. And Cremo said, give them the money.

And within the hour, there was a blaring headline in the Anchorage Times, Court seizes Bar funds at gunpoint. I was going to a national conference of court administrators and I landed in New York, and I got off the plane on the -- there were newspaper reporters. What happened that you pointed a gun to take the money?

MS. RUSSELL: Quite a story, huh? The wild frontier. JUDGE STEWART: Well, anyhow, that's what happened from my point of view.

Subsequently, one of the members of the Bar who was active in the opposition to Nesbett told me that that whole -- the Bar turned around and sued the Supreme Court in federal court and the federal court appointed a three-judge court to hear the case.

And the three-judge court was composed of a tough old trial judge by the name of Beaks in Seattle, and by the chief judge of the Ninth Circuit, whose name slips my mind at the moment, and by Walter Hodge, who was a bitter enemy of Buell Nesbett.

And the case was tried. And Nesbett hired an attorney by the name of George Cochran Doub, D-o-u-b, from Maryland. And George Doub had been recommended by Warren Olney to Buell Nesbett. And he came and tried the case.

And that three-judge court decided against the Supreme Court, determined that what had been done was unconstitutional. I'm not sure whether they were talking about due process, I can't remember not exactly what they determined.

But -- so the Court was in a bind. The federal court had made its decision against the Supreme Court's action. Well, there were national people that were very concerned about this controversy.

They thought that it gave not only the Alaska court but courts generally a bad image. And the American Bar Association put together a panel to negotiate a settlement between the Bar and the Supreme Court.

And the settlement officers were a man who was the head -- was the executive director of the American Judicature Society by the name of Glen Winters, who had helped us when we set up the Alaska Bar back in territorial days, the chief justice of Oregon, whose name I don't remember, and a trial judge from Seattle, who I think was als -- I don't think he was a member of the Alaska Bar, but he had come up here and tried cases with Alaska lawyers.

He was known in and respected and liked in the Bar. And there was a negotiating session in the old Senate chambers in Juneau, Supreme Court on one side of the room and negotiators in the middle and then Bar people on the on the other side.

And they negotiated a settlement. And they adopted a set of rules that mirrored the Washington rules of discipline and that's basically the system that the Bar has today, modeled after the Washington system.

MS. RUSSELL: Was that a toughly fought negotiation or did it go smoothly, or were you there? JUDGE STEWART: Well, the Supreme Court was in a hot spot. There was a federal decision against them.

They had -- and the Bar agreed to this proffered different set of rules, the Board of Governors, they were over there. And the Supreme Court said okay. And the case was settled and was -- MS. RUSSELL: Well -- JUDGE STEWART: -- and was dismissed.

Now, there's another aspect to it. The Bar was represented by a very, very able attorney from Long Beach, California named Joe Ball.

And you probably wouldn't remember this, but Earl Warren, the chief justice of the United States, got into a big battle with the American Bar Association when he was chief justice and resigned his membership in the American Bar.

I can't remember what the issue was, but Joe Ball was the president of the California Bar. And he stood up for Earl Warren. And before this negotiation occurred when the -- on the -- see, it was a three-judge decision and rather than take it to a full panel of eleven Court of Appeals judges, because one of the parties was a state, the Supreme Court of Alaska, it could go directly to the United States Supreme Court.

And I talked with George Doub and he went to a cocktail party in Washington and Justice Brennan of the Supreme Court took him aside, this is what he told me, and said, George, don't bring that case to our court

because if Joe Ball came to the Supreme Court, look out because he was a close supporter of Chief Justice Earl Warren and it was a big count against anybody that was against Joe Ball before the United States Supreme Court.

And that was one of the factors that Doub advised the negotiation.

MS. RUSSELL: Well, that was certainly the most dramatic and probably the most interesting occurrence during your five years as -- JUDGE STEWART: Traumatic, not just -- MS. RUSSELL: Traumatic. JUDGE STEWART: Not just dramatic, traumatic.

MS. RUSSELL: Yes, I can imagine. JUDGE STEWART: Because I still get people say what happened when you pulled the gun? I didn't pull a gun. It was invited by the bank's attorney in order to make a public case showing the Court in a bad light.

MS. RUSSELL: So what else did you do during your five years as administrator. Was the rest of it pretty routine? JUDGE STEWART: Well, I was -- I persuaded Nesbett that a lot of effort should be put into building the court libraries.

The court libraries that we inherited from the federal court to the extent that we did were not very adequate. And I persuaded that there should be four judicial districts with a presiding judge in each district.

There were other people that were trying to create about 10 districts, which would have complicated administration considerably. And eventually I also persuaded him to institute area court administrators so the presiding judge would have a professional administrator to help with the administration of the courts in his or her district.

MS. RUSSELL: And those were all decisions that were made by the Supreme Court eventually -- JUDGE STEWART: Yes. MS. RUSSELL: -- on your recommendation? JUDGE STEWART: Right.

MS. RUSSELL: You indicated, let's see, that -- I think we're going to have to wrap up here.

I guess I -- my last question will be basically you've seen a lot of changes in the legal system, in the -- the court, and our judiciary system over the years. JUDGE STEWART: Yes.

MS. RUSSELL: What good developments have you seen, what bad ones, what do you kind of -- JUDGE STEWART: Well, I don't -- MS. RUSSELL: -- foresee for -- JUDGE STEWART: I don't really see -- MS. RUSSELL: -- the system? JUDGE STEWART: -- very many bad ones, you know.

Justice Rabinowitz, who was chief justice for four separate terms, when he retired became my neighbor in Juneau before he died two years ago, a year and a half ago. And we were very close friends.

And he was tremendously enthusiastic about the structure of the Alaska court system. He was persuaded it was the outstanding court system of the nation. The manner of selecting judges, almost all aspects of it, I don't think I have much to criticize about the court system.

MS. RUSSELL: Well, and you should have been gratified by that statement because you were certainly -- JUDGE STEWART: I was -- MS. RUSSELL: -- on the ground floor. JUDGE STEWART: -- involved, but there were a lot of other people involved, too. I don't want to claim credit -- MS. RUSSELL: I understand. JUDGE STEWART: -- but I was involved.

MS. RUSSELL: And, Judge, you already have credited Justice Nesbett. Who else would you say was important in this, in the development of -- JUDGE STEWART: John Dimond -- MS. RUSSELL: -- the judicial system? JUDGE STEWART: -- was certainly.

Harry Arend got caught in the crossfire in the Bar fight. And Nesbett and Dimond had been in office more than three years, so they had been confirmed by the voters for a 10-year term and they couldn't be touched. But Harry Arend who had succeeded Walter Hodge on that court had yet to be confirmed.

And as part of the Bar fight, various members of the Board of Governors took out after Harry Arend when his name came up on the ballot. And Harry Arend was a devout Mormon. He was the leading lay Mormon in Alaska.

I don't know what the title was, but he was the chief lay person in the Mormon church. And he told me this himself and I saw it, felt that he -- ­that ethically he should not campaign. But the Bar was out there actively attacking him and they were attacking him concerning a particular case in which he had written an opinion and it concerned a school administrator down in Kenai by the name of Blue.

And in my judgment, they used underhanded or false accusations, misrep -- maybe not false, but misrepresentations of his role. And he lost. I personally think it killed him because not long after that he died from a heart attack. He was an extremely conscientious lawyer and judge. But he was replaced by Rabinowitz.

MS. RUSSELL: So the state didn't suffer, obviously. JUDGE STEWART: The state didn't -- MS. RUSSELL: Judge -- Justice -- JUDGE STEWART: -- suffer. MS. RUSSELL: -- Rabinowitz has a -- JUDGE STEWART: Right. MS. RUSSELL: -- wonderful reputation. Thank you very much, Judge. JUDGE STEWART: You're welcome. Is that it for today? MS. RUSSELL: That's it.