KAREN BREWSTER: Today is January 23rd 2012, and this is Karen Brewster and I'm here in Anchorage, Alaska interviewing Justice Warren Matthews for the Judges Oral History Project, Project Jukebox.

I'm also accompanied by Marilyn May, who is running the video camera and will be asking some questions as well.

So thank you Justice Matthews for being willing to participate.

It's a pleasure to meet you.

JUSTICE MATTHEWS: I think I'm happy to be here.

KAREN BREWSTER: I guess we'll see how it goes. Why don’t we just start out a little bit if you tell me a little bit about your background?

JUSTICE MATTHEWS: Well, I was born in Santa Cruz, California in 1939.

And lived there for five years, and then moved to Hollister, California and did all my grade school and high school in Hollister.

And then went to Stanford University undergraduate, then attended Harvard Law School, then came to Alaska.

So that's my prelaw background.

KAREN BREWSTER: What was your family like growing up? What kind of family life did you come from?

JUSTICE MATTHEWS: Well, my dad was the manager of the local gas and electric company and my mother was a schoolteacher.

And I had -- and have an older sister and a younger sister.

KAREN BREWSTER: Hollister's a fairly rural community and an agricultural community.

JUSTICE MATTHEWS: It's -- especially then. It was a farm town, farm and ranch town, yeah.

It's a sort of stand alone community. By which I mean it's not the suburb of anything and had its own junior college. It's county seat.

KAREN BREWSTER: I don’t know about then, but now it's quite culturally diverse.

JUSTICE MATTHEWS: Well, we had -- I went to school with lots of Mexican Americans.

Lots and lots -- it was maybe forty percent in our schools. It might have been a little more or a little less than that.

So it was in that sense. We never used terms like culturally diversity, but I went to school with lots of Mexican Americans and

had many Mexican American friends, and have gone to the 50th reunion of San Benito County High School

and have enjoyed becoming reacquainted with many of my friends and many Mexican Americans.

As you might expect. I have attended reunions.

KAREN BREWSTER: Do you think growing up in a community like that and going to school with those folks affected you in what's gone on with the rest of your life?

JUSTICE MATTHEWS: It did and in a pretty direct ways actually.

I remember in kindergarten for example when President Roosevelt died I didn’t --

I think I just learned that in kindergarten that the teacher announced that Franklin Roosevelt had died

and I said something like well that's not necessarily bad is it. My dad says that he is ruining the country.

And my dad was a Republican and basically I just heard the sort of things that many Republicans were saying about President Roosevelt probably,

you know, I didn’t -- I wasn’t able to distinguish what it was, but I'm sure it was related to the social welfare and economic policy.

It's much the same debate as is going on now. KAREN BREWSTER: Right.

JUSTICE MATTHEWS: Really. And so my dad was on the Republican side of that. So I said this. I blurted this out in kindergarten.

And I remember my friend Bobby Solano, still my friend, and he -- we went through 12 grades of school together and I saw him at our 50th reunion --

said something like, "Nno, he’s good. My dad says he's for the poor people."

And, you know, I had to think to myself well that sounds pretty good. He's for the poor people.

And it was just sort of a rudimentary insight that I got from being in kindergarten and where the kids were exposed to lots of different views, and so --

And it also was an insight that, you know, that I learned early that your whole world view isn’t just framed by your parents.

I remember, too, that we didn’t have any African Americans in town for the longest time and then

I guess when I was about third or fourth grade why an African American family moved in and they had a girl who came to our grammar school.

And my same Mexican American friend said -- mentioned that this black girl was coming to school and they said something like

and black people have a hard time elsewhere, which was news to me, but that's not going to happen here.

And so it was -- you know when you think about it in retrospect it was really quite moving, of course, because they were sensitive to racial discrimination, too,

and that it was absolutely explicit that there wasn’t going to be any trouble on account of race there.

So that was another example.

KAREN BREWSTER: Uh-huh. Why did you decide to go to law school?

JUSTICE MATTHEWS: You know, I didn’t really want to work for anybody. I mean a big corporation.

It just didn’t seem appealing to me really.

There was a career day of sorts at -- where an independent lawyer came and talked about his practice, mostly in court, mostly depending -- defending people accused of crime.

I take it, you know, just routine things and then routine cases of another age, but he seemed so

unconstrained compared to my parents' circle of friends that I thought it was real attractive and that might be a profession for me.

And -- but I didn’t -- I didn’t really resolve to become a lawyer at that moment, but I always retained that as an option.

KAREN BREWSTER: Well, then you did go to law school and choose to become a lawyer?

JUSTICE MATTHEWS: Yeah, I did. It just seemed like the most logical thing to do and I really didn’t give it too much thought.

I had some friends who were going to law school and I really didn’t even decide to take the LSAT, which I hadn’t heard of, in fact, until the spring of my senior year in college.

I'd just come back from Europe and one of my friends said that he was going to take it and I better sign up if I wanted to go to law school.

Otherwise, why I was going to lose a year and I might get drafted too.

So I signed up and took it with him. So I was off.

KAREN BREWSTER: And so you said you went to Harvard for law school?

JUSTICE MATTHEWS: Uh-huh.

KAREN BREWSTER: And then how did you end up coming to Alaska?

JUSTICE MATTHEWS: Well, once I went to law school I worked one summer in a big firm in San Francisco.

And, you know, I liked all the people I worked with. I had some pretty interesting assignments, but I wasn't interested in being there.

I could see the progression from the newest associates to the senior associates to the junior partners to the senior partners.

I might have been unfair in my perceptions, but it seemed so routine, that I wanted a little more adventure.

And so when -- so I never -- at law school I never interviewed for any of the big firms at all, never signed up for them.

And when Ted Pease of Burr, Boney and Pease of Anchorage, Alaska, put a notice on the employment office board why I interviewed with him.

I had previously, I think, interviewed with Attorney General George Hayes of Alaska.

I interviewed with George and he seemed pretty uncertain, as I wondered what he was doing there actually.

He seemed pretty uncertain as to whether he would have an appropriation to hire any lawyers.

So, of course, it was nice talking to him, but when Ted came by, he was eager to

hire lawyers so he made me an offer on the spot and

I went home and discussed it with Donna, my wife, and she wanted to come, so I accepted on the spot and that was the end of my interviewing.

KAREN BREWSTER: And what year was that that you came to Alaska?

JUSTICE MATTHEWS: It was -- the interview would have been in 1963, but then I had to graduate from law school and come up, so that was ’64.

In the interim, there was the great Alaska earthquake.

The -- I think Ted had told me that they were in the -- they just were moving into a new building and when we saw in the headlines --

I remember seeing the headlines that there was a big earthquake in Anchorage. On a Saturday in Harvard Square, why I wondered whether I still had a city or a firm to come to.

So I waited a decent period for the dust to settle and then I called Ted Pease and asked him if there was still a job for me and he said a couple of things.

He said first of all that they were in disarray because they had moved into their building and then it had been flattened like a pancake.

It was at Sixth and K. And Sixth and K is still a vacant lot.

It was right in the what's called the graben of the L Street slide.

So they were out of that by necessity and I guess in the process of moving some place else.

But he also said that the earthquake for lawyers would be a boom.

And that not only was there a job, but he was considering hiring more people.

And so when I had accepted the job at Burr, Boney and Pease I think it was tied for the largest firm in the state having at that time I think four lawyers and -- but by the time I arrived they might have had five actually or five under contract.

By the time I arrived, why I think I became the seventh in the firm, so --

And we did actually have quite a bit of litigation concerning earthquake-related cases.

KAREN BREWSTER: And then from private practice you moved on to other --

JUSTICE MATTHEWS: Well, I was in private practice with Burr, Boney and Pease for about four years, I guess and then

my friend and law partner Russ Dunn, who also worked at Burr, Boney and Pease, and I decided to form our own firm. So we did.

We moved into a three-room suite in the Loussac-Sogn Building.

I remember taking our teak dining room table and some decent looking southwestern-looking dining room chairs.

They were my office furniture for a while and then we got some federal surplus desks here and there and so that was our -- that was the beginning of Matthews and Dunn.

And so that would have been -- and was with -- in Matthews and Dunn, and Matthews, Dunn and Bailey expanded a little bit, until I was appointed to the Alaska Supreme Court in 1977.

KAREN BREWSTER: So, tell me about that appointment and why did you -- did you put your name in -- ?

JUSTICE MATTHEWS: Right. KAREN BREWSTER: -- for that and why did you decide you wanted to do that?

JUSTICE MATTHEWS: It was the second time I put my name in. I put my name in I think for the seat that Ed Burke was appointed to in 1975.

I didn’t really think I'd get appointed then. I was too young.

But I thought, well, the first time especially a young person puts in an application for something why people might think that he's unqualified and there's just a shock that's presented by an early application like that.

So I thought I'd just put it in and let people get over it and maybe the second time why it would seem less crass.

So I did and I didn’t really get through the Judicial Council the first time.

In other words, I was formally and legally declared unqualified for the position.

That's not exactly right because the Council’s criteria then and now are that -- that only the best qualified people will be nominated.

But actually there were about six or seven people who were nominated and I was not.

Then I put in in ’77, and things were a little better, I think.

And so I was nominated along with quite a few other people still, four or five.

KAREN BREWSTER: What inspired you to want to join the judiciary in the first place?

JUSTICE MATTHEWS: When I got to law school, you know, almost all of law school entails reading appellate cases.

I actually wasn’t aware probably until I got to law school not on any conscious level anyway that there was such a thing as appellate opinions,

but when I started to read them, I thought, well, what a great job to be presented cases and then you just -- you decide them and write something to explain the result.

So I thought right away that would be something that I'd be interested in and might be good at.

So I never -- nobody has a right to become an appellate court judge, but it was always somewhere in the -- my -- in the back of my mind that I might like to do that.

So, actually as it turned out at the earliest opportunity I applied and kept applying, but ---

KAREN BREWSTER: Well, is being on the judiciary -- does that use sort of more of one's legal philosophy and being a legal scholar approach more than you might --

JUSTICE MATTHEWS: It's not so much legal philosophy, but there is a lot of scholarship.

That is, you have to enjoy understanding legal doctrines, tracking them down and finding out what they really mean, and how far you can carry them, and where their limits are.

So, and I actually enjoyed that in practice, too.

A lot of my practice was writing briefs.

And so I found that an effective brief usually gave some background usually a lot more background than your opponents would give in arguing the application or not of a particular legal thread.

But in my practice too, you know, I wasn’t just an appellate attorney I had lots and lots of trials and did a lot of commercial work too. So --

KAREN BREWSTER: So, what was your favorite type of cases to work on?

JUSTICE MATTHEWS: The -- I don’t know that I had a favorite type of case, but I liked the diversity to the extent that I

was noticed as a lawyer was because I took some high profile conservation cases.

That was before there were public interest law firms, so there was no Earth Justice or Trustees for Alaska.

And so a lot of the cases that would go to such law firms came to me.

And so I guess my first big -- my first interesting conservation case was a case involving a timber sale in Indian Valley near Anchorage,

and a group of outdoor recreationists wanted to stop the sale and so they -- they hired me to see what could be done.

Actually, almost all plaintiffs who hire conservation attorneys ask them to -- to sue and take out an injunction as if it's automatic.

So I was retained to take out an injunction. Of course, you need a legal theory, too.

But I found one and we did actually stop the timber sale, and I suppose that's when I became a conservation attorney.

Actually, the same group then became the core group of the committee for the creation of the Chugach State Park.

And I worked with them, too, and we were able to persuade the legislature to pass the Chugach State Park Bill in just -- that very year. It worked out very well.

KAREN BREWSTER: What year was that?

JUSTICE MATTHEWS: It would be around ’69 or ’70.

KAREN BREWSTER: Yeah, okay, ’70. JUSTICE MATTHEWS: Uh-huh.

KAREN BREWSTER: I have it written here. JUSTICE MATTHEWS: Yeah.

KAREN BREWSTER: That's a fascinating topic. I would love to talk more about that whole --

JUSTICE MATTHEWS: Well, I -- and then I did get other conservation cases because they were never able --

they didn’t pay very well and they were hard because, you know, you're fighting the state and, of course, Indian Valley was small potatoes, but the rest of them weren’t.

Fighting the state and the companies wanting to do the development, why it was just very heavy litigation.

So I quickly learned that I couldn’t do more than one at a time.

So I did have a case in southeastern Alaska attempting to stop the largest timber sale that the Forest Service had ever made, which included a third pulp mill in southeastern.

And that was interesting litigation, fascinating litigation, and ultimately, why successful, although not by any means a clean legal victory.

I don’t mean to imply that it was an underhanded legal victory.

It was just that other factors were at work, too.

And represented the Cordova District Fisheries Union and we consolidated with some conservation groups in an effort to try to stop the Trans-Alaska Pipeline.

That was a clean legal victory, but it was ultimately unsuccessful, obviously.

I represented a group of fishermen and conservationists to try to set aside the oil leasing of Kachemak Bay.

That was a clean legal victory that was successful. And so --

KAREN BREWSTER: Well, I'm going to bring us back to your years on the supreme court.

It was many years of your career and so I was wondering if you could maybe talk about what that was like when you first started, and what was that like to become a judge?

JUSTICE MATTHEWS: I first started I was -- had just turned 38 years old, and I got a call from Chief Justice Boochever where he said first of all congratulations, second when can you come to work.

This was, I guess, in about the first of June in ’77.

I said well, you know, these interregnums in one’s life don’t come very often, so I want to take two months off.

And he said that's completely unreasonable.

I had known him a little bit, but immediately he treated me like his son.

But he made a good case, so I came on board and actually heard oral argument in the case on June 30th.

And then I don’t know quite how that -- the niceties of things were worked out, but I wasn’t formally on the payroll I don’t think until two weeks after that.

But I did participate in a case.

KAREN BREWSTER: Do you remember what that first case was?

JUSTICE MATTHEWS: Oh, yes. It was a suit that was trying to extend the holding in the Raven case.

The Raven case was a case that held that small amounts of marijuana in the home were protected by the Alaska Constitution’s right to privacy. Trying to extend that holding to cocaine.

So it was a very controversial and a very high profile case. So, but --

KAREN BREWSTER: How did you feel jumping into that limelight?

JUSTICE MATTHEWS: I was great, yeah. That's what I signed up for.

KAREN BREWSTER: Were there particular challenges that you found once you got into being on the court and --

JUSTICE MATTHEWS: I found some strange gaps in my education, that, you know, you'd be surprised to hear about probably.

Like I'd never thought about standard of review.

And I never paid much attention to the types of constructs that appellate judges use for evaluating constitutional -- the application of constitutional provisions such as the equal protection clause.

I mean there's very elaborate constructs that I had never paid any attention to at all. So, but I soon learned.

KAREN BREWSTER: I need to ask you guys what is a standard of review?

JUSTICE MATTHEWS: A standard of review is the standard by which an appellate court will judge a lower court’s decision.

So if the lower court makes findings of fact, for example, the standard of review on findings of fact is not that the appellate judge is not free to substitute the appellate judge’s judgment for that of the trial court and it's only if an egregious error is made --

a big error of some sort and there're various ways of expressing it.

Can the appellate court refuse to accept the finding.

So that's one standard of review and there are other standards of review that are applied to questions of law.

And sometimes it depends on what the question of law is. And then there's another standard of review that's applied to decisions by juries.

So you're not free to just set aside a jury verdict merely because you think it's not what you would have decided.

KAREN BREWSTER: So that standard of review is what your decision -- JUSTICE MATTHEWS: It's a -- KAREN BREWSTER: -- in the appellate court is -- JUSTICE MATTHEWS: Right It's a -- KAREN BREWSTER: And you just follow within those rules?

JUSTICE MATTHEWS: It's a constraint that's in part self-imposed, but sometimes actually imposed by rule or by statute depending on how things are done in a particular state.

KAREN BREWSTER: Hm, I never knew that. I thought maybe if -- I assumed when the appellate court receives a case you review it all and you make your own decision on whatever things you deci --

find may be have not -- were not right in the lower court?

JUSTICE MATTHEWS: Yeah, not exactly. You do review the case and you do make your own decision, but it has to be within the rules concerning standard of review.

KAREN BREWSTER: See, I learned something.

What were some of the things you would say were successes about some of your early years on the bench?

JUSTICE MATTHEWS: Well, it's -- it's kind of a flat life, you know. It's not like the practice of law -- private practice of law.

Why we'd come in, we'd get a big verdict and the champagne would be poured and, you know, we'd spend the money three times over before we'd get a check probably -- not -- I mean just mentally.

We never -- in my firm why we never borrowed a dime, but, you know, you mentally prepared for the money.

And anyhow there's a lot of celebration, lots of highs and then if you happen to lose a case why that's obviously a low, too.

In doing appellate work, why you're more like the barber, you know. You hear argument, you write an opinion, it's accepted, usually, and the case is over, and you look out in the waiting room and you say, "Next."

MARILYN MAY: How about something like the Zobel case?

JUSTICE MATTHEWS: Well, the Zobel case was -- that almost resulted in my non-retention.

You know, we have to come up for retention in the first general election more than three years after our appointment on the supreme court.

So the Zobel case, which was a case challenging the Permanent Fund Dividend as it was then constituted came up about, well, just in the year before my retention election.

And the way it was first constituted is that -- the way to think about it, I guess the best way is that every year of Alaska residency gets you one Permanent Fund Dividend.

So if you'd been a resident since statehood say why you'd get 17 or 18 Permanent Fund Dividends, whereas somebody who'd just got there and was eligible only for one year would get one Permanent Fund Dividend,

so it's pretty unequal.

And with no chance of ever catching up.

So that scheme was challenged by Ron and Penny Zobel and they were quite reviled as short timers and not real Alaskans.

When the case came up -- why the case was I think maybe the first Alaska Supreme Court case that was televised.

And they even had John Havelock was the commentator and I thought it was clearly unequal and a violation of federal -- the Federal Equal Protection clause.

And I didn’t hide my views in questioning.

I later listened to the TV broadcast, and John was saying nice things by saying, "Well, that doesn't necessarily mean that he's against it. Sometime people just play devil’s advocate."

But I wasn't playing devil's advocate.

And I had to wonder when I was asking these questions, too -- the hostile questions. To myself, I asked, well, what are you doing?

Can’t you just shut up?

But I didn’t and so I -- it became the -- there was a fellow who was running for state house from Anchorage started running ads urge -- I became the centerpiece of his campaign, I guess, somehow --

MARILYN MAY: Was this before the -- JUSTICE MATTHEWS: I didn’t know him. MARILYN MAY: -- decision had issued?

JUSTICE MATTHEWS: Before the decision had issued.

He accused the Alaska Supreme Court of withholding the decision to protect me.

That was one ad. Which wasn’t true.

He had a very clever ad that didn’t have much to do with the Zobel case.

It said something like Justice Matthews has protected or refused to send to jail a lawyer who was convicted of selling dope to a teenager, while at the same time jailing a sportsman.

That's pretty good, you know.

Why should I be retained doing things like that?

And it's -- you know, they're sort of half truths basically. The --

KAREN BREWSTER: So what was the truth? What was --

JUSTICE MATTHEWS: The truth was that for the lawyer who had supposedly sold cocaine to a teenager. He was a lawyer.

They were on a boat with the teenager and the teenager’s dad.

And I don’t remember the drug. It might have been marijuana. I just don’t remember that.

But the lawyer -- at the request and with the consent of the teenager’s dad gave drugs to the teenager.

There was somebody else who reported this and the lawyer was federally prosecuted and punished, and the case came to the Alaska Supreme Court as a disciplinary proceeding.

In the disciplinary proceeding, I think the lawyer was suspended for four years rather than disbarred at the recommendation of the Disciplinary Board and the Alaska Supreme Court went along and I went along.

So it is true that we didn’t jail the lawyer.

On the other hand, the question was not whether he should be jailed, so that takes a little explaining now.

I mean this is politics. You have to explain that.

And the sportsman that I jailed was a guy who shot somebody’s pet deer in Ketchikan on the guy’s lawn, you know, the neighbor’s lawn.

And he had -- he's a mean fellow. He had shot some other neighbor’s dogs.

So he was sentenced to a few days in jail by the district judge, state district judge.

And the sentence appeal came to us because there was no court of appeals.

And we affirmed the sentence, so that was the sportsman I jailed.

But it all takes quite a bit of explanation. I thought, well, it's just the ranting’s of some crazy I don’t have to respond.

So I never spent a dime opposing or promoting my retention.

But things got a little more serious after the Zobel case was published, and I was shown as dissenting along with Senior Justice Dimond.

MARILYN MAY: And the majority?

JUSTICE MATTHEWS: The majority held that the Permanent Fund Dividend was constitutional, but then --

and so that might have been not so bad even though I was on the less popular side of the issue.

Except, on the Monday before the Tuesday of the election, I guess on the Sunday or Saturday, Justice Rehnquist, who was then just justice, not Chief Justice Rehnquist, and was assigned cases arising in the West

had issued an injunction after the checks had been cut but not mailed --

issued an injunction enjoining the state treasury from issuing the checks.

And the news was, of course, in the Monday paper that the Supreme Court of the United States had stopped the payment of the Permanent Fund Dividend and people, like lawyers spending their fees in advance, why people were mentally ready to receive the money and were disappointed, naturally.

So that was bad news for the Monday before the Tuesday of the election.

And I realized finally that I was in trouble when I was standing in line at Dimond High

ready to vote and there were a very nice looking couple, not radical looking people at all in front of me, looking over the voter’s pamphlet and I saw that they had turned to my page

and they said something like "Oh, he's the one we have to vote against him."

And so I actually lost in Anchorage.

And the only reason I was able to win was because the campaign against me was only Anchorage-wide.

MARILYN MAY: Wow. And how much later was it that the supreme court decision came out?

JUSTICE MATTHEWS: Well, I was vindicated eventually, right and, you know, they're pretty fast.

That would have been just the spring after the November elections.

KAREN BREWSTER: So the Federal Supreme Court intervened and --

JUSTICE MATTHEWS: The Supreme Court of the United States did throw out the Permanent Fund Dividend program as it was then constituted and basically the grounds that -- that were the grounds of my dissent.

Well, there were many grounds, but the core of the dissent that was authored by Justice Dimond and the two paragraphs that I put in were the core of the majority opinion I thought.

Which is unsurprising, because we took it from their cases.

MARILYN MAY: Wasn’t there just a little bit of champagne on that one?

JUSTICE MATTHEWS: No, not really at all, no.

It's better to be on the right side than the wrong side, but, you know, I've been on the wrong side, too.

But usually without realizing that there even were reasonably arguable sides sometimes, you know,

because the issue at least the last time that we were reversed why it was raised and the issue that we were reversed on in the Supreme Court of the United States. It was raised.

I looked at it afterwards, but it wasn’t the central point of the argument.

KAREN BREWSTER: Do you remember what the case was?

JUSTICE MATTHEWS: Oh yes. It was the case involving Valdez -- City of Valdez taxation of the oil tankers.

So, yeah, they reversed on a point that we treated as settled.

KAREN BREWSTER: And what was -- so what was that case? That they were -- the city wanted to -- JUSTICE MATTHEWS: Pardon me.

KAREN BREWSTER: The city wanted to tax the oil tankers?

JUSTICE MATTHEWS: Right, right. They had a formula -- they had a formula for -- for imposing property tax on the oil tankers.

KAREN BREWSTER: And then you --

JUSTICE MATTHEWS: We thought it was all right, although we wrote and we wrote an opinion.

I took -- I wasn’t the author of the opinion, but I did participate in its drafting.

And -- and on the -- on the main -- what we thought was the main issue why I knew that was going to go up and we took great care to --

to try to follow the constraints of the supreme court opinions, because we knew it was going to be reviewed and would be well argued, obviously.

And -- but on the other -- on the issue that was actually reversed on, why we just didn’t see it coming at all.

KAREN BREWSTER: I want to just take a second and just move this away from you.

JUSTICE MATTHEWS: We can go off the record anyway take a break.

KAREN BREWSTER: And take a break.

We're back from our little break.

Before we took the break one of the things you were telling us about was that retention election.

JUSTICE MATTHEWS: Yeah.

KAREN BREWSTER: Controversies at that time.

I'm wondering if you could talk a little bit more about your thoughts about Alaska’s system based on the judiciary article of merit selection of judges and the retention process.

JUSTICE MATTHEWS: The merit selection system is excellent.

I mean it really -- it's hard to say -- see how it could be improved upon I think.

Especially with the traditions that have grown up around it.

For example, the Bar poll, you know the Bar poll isn’t really part of the -- of the process.

MARILYN MAY: Can you describe that?

JUSTICE MATTHEWS: Well, it's just a poll of every lawyer concerning every prospective candidate and the Judicial Council has refined it so that there're ways of identifying block votes.

And they're very sophisticated at dealing with that. And they discount votes that are not based on personal experience.

So it's a nicely done system. And then concerning the Judicial Council itself why --

it used to be that the -- or the constitution just says that the Board of Governors will select the lawyer members of the Judicial Council,

but that -- and that actually was done initially and caused a small revolt in the Bar because the

Board of Governors appointees seemed so closely related, in one case literally, two cases literally, to the Board of Governors themselves.

In fact, I think one of the Board of Governors actually had himself appointed to the Judicial Council.

And another one appointed his brother-in-law.

And it was just too much for the general Bar to take and so they -- they reformed the system and they got -- they got a commitment that --

that the Bar members of the council would be elected from the Bar at large and so -- and that's by num -- that's not by statute, certainly not by constitution, but it's a lot better way than they started out doing.

So that there have been these traditions that have been built up that have improved or the details of a system whose bones were good to begin with.

So I think merit selection is really very good.

I think retention could be improved on, but it never will be, probably.

It's very hard to change these things once they're instituted.

It's -- and my problem with retention is just as was shown in the recent Iowa experience.

It's just too easy to have an interest group decide that because a high profile issue went against the interests of the interest group that they'lll just campaign against the court.

And it's happened now and then.

Happened in California. Happened in Tennessee. Happened most recently I think over gay marriage, wasn’t it in Iowa.

California was the death penalty. Tennessee, I can’t remember what it was there.

So, and judges feel vulnerable and in a way it's -- I mean when you're running alone you're sort of running against an abstract ideal, too.

Whereas, if you actually had a cand -- not that I would advocate for a moment contested elections, but if you actually had a contest why you'd be running against a real person with a real person’s weaknesses.

So the judges are too vulnerable I think in our system,

but it has worked pretty well nonetheless with the exception of -- at the supreme court level Harry Arend, who was voted out because he just got caught in a maelstrom.

KAREN BREWSTER: Can you talk more about that specific case?

JUSTICE MATTHEWS: Oh sure. That was the Bar fight.

That was a big deal when I first moved up here.

And that the position of the Bar was that it was an integrated Bar.

It had been integrated under territorial law.

And it was independent of the Supreme Court of Alaska’s governance.

Supreme Court of Alaska issued some Bar rules making the integrated Bar subject to control of the supreme court,

but when it became evident that the Bar would not operate under those rules why the supreme court seized the funds of the Alaska Bar Association, and the dispute was off and running.

The -- when I first got up here why we -- we had just found a place.

I hadn’t really checked in at Burr, Boney and Pease, and I ended up in the hospital after unloading the car, a painful little thing that happened.

And so the next morning after I was hospitalized and drugged, I woke up and there were two things happened.

My soon to be mentor George Boney was in the hospital room,

and I got a copy of the Anchorage Daily News, the morning newspaper, and it said something like "Court Seizes Bar Funds at Gunpoint." And I think there was actually a picture in the paper of a trooper gun drawn in front of a teller’s window.

I don’t think the gun was pointed. I mean I would think it was just drawn and pointed down, but

anyway after listening to George Boney for about an hour and reading that, I wondered what I had gotten myself into.

But the bar sued the supreme court and a three judge federal court was impaneled.

And eventually the case was argued, but never decided, and the court strongly urged a settlement. And there was a settlement.

But in the interim though, before this occurred, Harry Arend, who was not one of the original appointees to the Supreme Court of Alaska,

and who had the bad luck to be coming up for retention was campaigned against by the -- by most lawyers in the Alaska Bar.

And I remember that -- I mean the idea was for every lawyer to write a letter to every client explaining the yoke of tyranny that had been saddled on the lawyers by the Alaska Supreme Court,

and urging as a measure to teach the court a lesson that Justice Arend be not retained.

So I remember a couple of afternoons as an associate at Burr, Boney and Pease being assigned the duty of stuffing envelopes with this letter.

And my co-associate Ray Nesbett, who was the son of the chief justice, was excused from this duty.

But I think I actually even wrote a paragraph here and there of -- in the Bar’s brief, but the case was settled.

It was so interesting to me when I -- and the -- the reputed terms of the settlement were that the court wouldn’t pass any rules concerning the Bar Association without Bar Association agreement.

So maybe thirty years later as chief justice, I had occasion to give a talk about the court Bar fight and in the process I actually dug up the settlement.

It's nowhere near as strong as that. It's very, very weak.

It's more like consider the views of, something like that, yeah.

And, of course, the court does that.

We always -- we always solicit the views of the Bar Association, but it was a big dispute.

But it ended with a whimper, and inevitably really because in every state, I think, why it's accepted that the top court regulates the integrated Bar.

KAREN BREWSTER: And what happened with Justice Arend?

JUSTICE MATTHEWS: Justice Arend was voted out and replaced by Justice Rabinowitz. KAREN BREWSTER: Uh-huh.

JUSTICE MATTHEWS: But he, you know, it's nothing Harry Arend did to deserve it.

KAREN BREWSTER: Right. How does Alaska’s retention and selection process affect judges and justices being able to be fair and impartial? Does it have an affect?

JUSTICE MATTHEWS: I don’t -- I don’t really think so. Well, let me tell you what the Hawaii system is for retention.

Personally, I think It's better, but if you -- I mean if you are talking about our retention system, you have to also --

if you're going to say that it's not as good as it should be, you should be able to point some -- to something that's better.

And it's a little hard to do, I think, unless you're going to say just service for a term, you know, which is, I think, the New York approach, I mean.

They just take the position that you've got a ten year term that's long enough.

Don’t complain, and they don’t really.

It might, you know, it might have the years wrong, but I think that's about the essence of it.

In some places, I think, maybe in Massachusetts and Rhode Island you're just appointed and you can serve on good behavior,

so there's no term at all and that's basically the federal system. Maybe that's better?

The Hawaii’s -- Hawaii has a periodic retention review by the Judicial Council.

At least the Judicial Council is knowledgeable, you know, and if it's constituted like our Judicial Council

and which has a non-political tradition, in part due to long and staggered terms,

and change in the executive mansion between parties.

Then you will have a knowledgeable and mostly unbiased body deciding whether justices and judges should be retained.

To me, that's better. On the other hand, I've discussed this with a number of judges who have said that they'd rather take their chances with the electorate.

So, and I can see what they're talking about, too.

But I do think the weakness of our retention system is that you're in the highest profile cases, why judges and justices are at the mercy of interest groups.

And we haven’t seen it yet, except in this sort of transitional case involving Justice Arend.