This is a continuation of the interview with Justice Warren Matthews on January 23, 2012 by Karen Brewster and Marilyn May at the Boney Courthouse in Anchorage, Alaska. This is a continuation from tape number Oral History 2012-02-01, Part 1. In this part of the interview, Justice Matthews talks about Alaska's judicial system, colleagues and mentors, what he liked about serving as a justice, alternative courts, and his contribution to Alaska's legal system.
Digital Asset Information
Project: Judges of Alaska
Date of Interview: Jan 23, 2012
Narrator(s): Justice Warren Matthews
Interviewer(s): Karen Brewster, Marilyn May
Videographer: Marilyn May
After clicking play, click on a section to navigate the audio or video clip.
Alaska's judiciary article in the state constitution
Alaska's judicial appointment and retention system
Collegiality on the bench
Establishment of the Alaska Court of Appeals
Working as a multi-judge team
Justice Jay Rabinowitz
Working with law clerks
Traveling to other courts around Alaska and assessment of the state's judicial system
Problem of expense of civil jury trial
Serving as pro-tem judge
Mediation and arbitration
Mental health Court
Stresses of the job
Contribution to Alaska's legal system
Reflecting on previous decisions
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After clicking play, click a section of the transcript to navigate the audio or video clip.
KAREN BREWSTER: So my question is how and why was Alaska’s judiciary article set up in the constitution the way it was set up?
JUSTICE MATTHEWS: Well, they were looking for -- for the best government possible.
And they hired a group of consultants to give the advice and the consultant assigned to the judiciary article said that the best way to do it was merit selection.
and he laid out the options.
The main option being an election of some sort and explained why merit selection was better than the elected method.
It was debated. Lots of the constitutional framers were lawyers who had had experience in other systems elsewhere,
and with just one exception, why, they all thought merit selection was much better than having a selection by partisan or nonpartisan election.
KAREN BREWSTER: Do you know who the dissenting vote was?
JUSTICE MATTHEWS: Oh, yeah. His name was Bob McNealy and he spoke at length in favor of --
at length, although not necessarily too cogently about the merits of the elected system. That's my opinion.
KAREN BREWSTER: Okay. I want to move on a little bit to -- actually no I have a follow-up question to that. I knew I had it. I just couldn’t think of it.
Just for my clarification you become appointed -- you became appointed as justice of the supreme court, but then you did have to go through an election for retention?
JUSTICE MATTHEWS: That's right. The way it's set up is that you stand for retention in the first general election more than three years after your appointment.
And after that, at ten year intervals and then you have to retire at 70.
KAREN BREWSTER: So initially though, all judges are appointed?
JUSTICE MATTHEWS: They are. But they're appointed from a list of nominees forwarded to the governor by the Judicial Council, which has to go through this process of selecting nominees.
Which is really quite a process and a very good one, I think.
KAREN BREWSTER: And you mentioned that age 70 mandatory retirement.
JUSTICE MATTHEWS: Uh-huh. KAREN BREWSTER: How has that been for you?
JUSTICE MATTHEWS: I turned 70, and retired.
KAREN BREWSTER: Were you happy to retire?
JUSTICE MATTHEWS: No. I would have gone on. I'd still be working full time, but it's a system that I wasn’t going to sue.
It's the system we live by, and so I certainly did it without complaint.
KAREN BREWSTER: And why would you have wanted to continue?
JUSTICE MATTHEWS: I liked the job. And thought I was still doing a good job.
And still able to do a good job, and had plenty of energy to continue.
MARILYN MAY: Do you think that circumstances have changed from when the framers set up that system?
JUSTICE MATTHEWS: Possibly. I mean I think we -- or some people -- the life expectancies and therefore the healthy life periods have grown older.
I'm not really against the idea of having a mandatory retirement age, though.
You know, at some point why you might say that there's too great a danger of people no longer being at the height of their mental powers.
KAREN BREWSTER: It doesn’t seem to be an issue for the US Supreme Court?
JUSTICE MATTHEWS: That's right. That's right.
I won’t make any snide remarks either because as far as I can see the old guys, you know, the people who are retiring when they are pushing 90 are very sharp.
KAREN BREWSTER: Right. Well, that's what I mean --
JUSTICE MATTHEWS: It's an atypical group.
KAREN BREWSTER: I always find it interesting that court there's not a mandatory retirement age.
JUSTICE MATTHEWS: None of the federal courts are. KAREN BREWSTER: Yeah.
JUSTICE MATTHEWS: And actually there were some prominent examples of senile or near senile federal judges who actually supplied the impetus for the mandatory retirement age in the Alaska system.
Not federal judges up here, but there were just known about, you know, they just were creating roadblocks in the flow of federal cases.
KAREN BREWSTER: So you said you liked the job and you didn’t want to leave it.
What did you like about it? What was so satisfying?
JUSTICE MATTHEWS: I liked everything about it, you know. It’s a -- it's always hard, you know, and so many cases why
you find yourself realizing that you don’t know quite enough about this case to decide it well, and so you have to learn.
So it's a continuous challenge and great people you work with, socially important work, useful work, so, and you're well taken care of.
So, no, for me it was an ideal job.
KAREN BREWSTER: Do you think there's certain things about -- are there certain things about you and who you are, and your personality, your characteristics that you think made you especially well suited to serve in that capacity?
JUSTICE MATTHEWS: Oh sure, you know. It's not a job for everybody, not everybody would like it even, you know, with all the writing and reading you have to do, and there's a bit of social isolation.
And you have to -- have to make sure that you behave appropriately in every respect.
I mean sometimes you think you're just pretending, but then it becomes life, you know.
Suddenly you are what you aspire to be.
KAREN BREWSTER: Certainly as a justice you had to make some difficult decisions.
There were cases that came before you and you had to make tough decisions and they're not always popular decisions and so how --
JUSTICE MATTHEWS: I never felt that really. I mean I never felt that there was -- that I was tugged in two different directions on a case.
So in terms -- in terms of difficulty as being defined as in conflict with personal value system, I didn’t really confront much of that.
I mean, occasionally you'd have -- I will give you an example.
There was a case where federal law requires that contracts of transportation not be honored if they violate the federal tariff even if the company like Sea-Land tells someone who wants to ship goods that it'll only --
it'll cost you fifteen hundred to ship your supplies to Anchorage,
and then they can say well we just made a mistake it's really going to be three thousand.
They can really get away with that, and that seems wrong actually, but we had to -- there was no choice.
We had to enforce a case where something like that came up and you can see the larger picture, although I think it would be a better system to have --
there should be some way where they -- where the promise that's relied on is -- is reliable and let the -- just punish the transport company for giving this information.
That should be a good enough deterrent, but that's not the deterrent that's built into federal and there's a supremacy clause, so, you know, so it's a conflict of two rights in a sense.
But our choice was -- and so that, you know, I found myself wondering is there some way around this, but really there wasn’t so we just decided it in accordance with the laws I've described.
But that's about as big a conflict or quandary as I ever saw myself in really.
Of course, we have the ability to dissent too, you know, so I decided my share of the time.
But, you know, I think the big -- the big cases would come up if we were -- the big case would come up for me if we were a death penalty jurisdiction, but that was never presented.
KAREN BREWSTER: I was just thinking in many cases like in a murder trial sometimes, you know, it's very controversial and a decision of innocent or guilt can become within a community a very controversial decision and a popular or unpopular,
and how a sitting justice deals with -- faces that, but it sounds like maybe --
JUSTICE MATTHEWS: It never was a problem for me. You just decided one way or the other just in accordance with -- with the law and the standard of review.
I think that some of the judges -- I can see how Justice Dimond, I think, was presented with a capitol move case,
and I think that weighed heavily on him and you could see how there would be a tug in both directions there.
And I can’t remember even how he decided, but I remember him saying that that was difficult because he felt so tied to Juneau, which of course is a much smaller community and hard to live anonymously as we do really in Anchorage.
Hard to live anonymously in Juneau, so -- So it's conceivable, but it's not something that I really ever experienced.
KAREN BREWSTER: Was there anything I particular that throughout your career you found it especially challenging or frustrating or difficult?
JUSTICE MATTHEWS: No. It's all difficult.
KAREN BREWSTER: You liked all of this.
JUSTICE MATTHEWS: It's a -- it's a, you know, I'll say it again, you know, I -- it's part of the job is you feel a little over your head quite a lot, and but that's part of the challenge.
KAREN BREWSTER: You had mentioned earlier George Boney as one of your mentors?
JUSTICE MATTHEWS: Right, yeah.
KAREN BREWSTER: Can you talk a little big about him and maybe some other people that influenced you, particularly?
JUSTICE MATTHEWS: Well, George was and then Ted Pease also in Burr, Boney and Pease.
Ted was a -- I learned a lot about how to try a case from him, and how attention to detail and the reasonable moderate speaking is a lot more important than being a great rhetorician.
And George was -- George talked too much, but -- and he'd summon you into his office and you' be there for three hours listening to him.
And but he was entertaining, and the thing I loved about George though is that he was not a money guy.
You were a lawyer in his eyes and when you were involved in a case, why you did everything you could within common constraints to win the case.
And it didn’t matter that it had become uneconomic, once you had made the commitment, why, you saw it through.
And so he was a good mentor in that way.
KAREN BREWSTER: Were there other people along the way through your career that inspired you?
JUSTICE MATTHEWS: Oh, I got help here and there and I -- actually another mentor once Russ Dunn and I formed our own firm was Bob Parrish, who is a Fairbanks lawyer.
And we associated with Bob in lots of cases, especially before -- he had four sons who became lawyers, but before they became lawyers why he could use a little legal backup now and then, so we did that.
So we participated in a lot of big and successful cases, and he was a good fellow to learn certain things from.
Again, a very fierce advocate.
KAREN BREWSTER: Can you think of an example of one of those things you learned from him?
JUSTICE MATTHEWS: He just never quit. He was just relentless, you know. And he liked to have fun, too.
KAREN BREWSTER: That very well leads into my next question which has to do with collegiality. JUSTICE MATTHEWS: Uh-huh.
KAREN BREWSTER: Amongst -- on the bench and amongst your colleagues and then with the Bar between the bench and the Bar.
JUSTICE MATTHEWS: Well, you know, we didn’t think too much. When I came on the court we didn’t think too much about collegiality.
So there were some heated conferences, sometimes some yelling, not typically, you know, basically it was polite, but we had our moments.
You know, collegiality came in -- I think, Justice Eastaugh is responsible for that a lot.
Explicitly Justice Eastaugh. I mean, he really paid a lot of attention to what sets people off and how to avoid doing that.
He was very good for the court. I think in that way, because he did pay attention to that.
There's certain terms of reference in dissenting opinions. For example, that he finally persuaded me never to use, so I agreed eventually.
And I think now Justice Fabe, too, helped an awful lot just to -- by the fact that she's a woman.
It sort of toned down the boys.
And so that's not very, you know, having seen it, it's not something to be underestimated.
MARILYN MAY: Are there other ways that you can identify that the court changed over your years?
JUSTICE MATTHEWS: Court of appeals.
MARILYN MAY: I was going to ask -- I wanted to ask about that.
JUSTICE MATTHEWS: Oh, the court of appeals made a tremendous -- I mean the reason Chief Justice Boochever was so overwrought when I was first on the court is they overwhelm -- talk about a caseload.
They really had a big caseload then, because they were doing every criminal appeal.
MARILYN MAY: Do you know how the decision was made to go that route instead of expanding the supreme court?
JUSTICE MATTHEWS: We talked about it. It was explicit. It was made by the supreme court.
And yeah, when -- when you decide to add another -- when you decide to alleviate a crushing caseload, there are several options.
And one of which is to put in a full scale intermediate appellate system, but we were too small for that.
So we decided to create an intermediate appellate court, and limit the jurisdiction at least for the time to criminal cases.
And then we advocated that before the legislature, and the legislature went along.
KAREN BREWSTER: So another alternative would have been to just expand the supreme court?
JUSTICE MATTHEWS: We could have added other justices, but you'd still have to be deciding the same number of cases.
It just would be -- you'd have fewer assigned cases per justice, of course, but that -- so that wouldn't be too much relief.
We could go into panels, but then that has anything of great precedent, why, you'd want to review anyway and there's a possibility of conflict between panels.
It just seemed like by far for us the most logical way of expanding was the way we did it.
KAREN BREWSTER: So, on the supreme court we have multiple judges viewing the same material. How do you come to a decision?
You come to your own personal decision? Do you work with each other to come to a joint decision? How does that work?
JUSTICE MATTHEWS: I pretty well come to a personal decision, but briefs are filed. You read the briefs. A law clerk memo discussing the briefs is filed. You read that.
You -- I -- I at least would usually write out tentative yes’s or no on each issue, then usually write in the appellate’s brief, yeah.
And then you have oral argument. In my case, I'd almost always ask questions concerning the points that were bothering me.
And occasionally when I'd get an inkling that I thought other judges would go a way that I thought was incorrect, why, I'd try to ask questions designed to reveal weaknesses of the alternative approaches.
After oral argument then there's a conference.
The justice to whom the case is assigned gives recommendations on each point and other justices --
the way we have come to do it is that a justice who disagrees speaks next, and then the other justices speak as well.
So sometimes you're persuaded by on -- if not by the oral argument by the positions expressed that are contrary to your tentative position.
That happens frequently, so it is collective in that sense, but it is individual in the first instance.
And individual in the ultimate instance, because you're responsible for your vote.
KAREN BREWSTER: What is it like working in that setting with people, like for instance with Justice Rabinowitz, for instance? What was he like to work with?
JUSTICE MATTHEWS: It's fine. I mean the people are all conscientious and intelligent. Most of them have very good social skills.
That's why they're there and it's entirely -- I mean the only thing that could be better is if we all agreed.
KAREN BREWSTER: It doesn’t always happen.
JUSTICE MATTHEWS: And that's not possible, yeah. And it doesn’t always happen.
It does happen in a large percentage of the cases.
KAREN BREWSTER: I did mention Justice Rabinowitz. He's certainly a name that many of us who are not experts in our state’s history have heard of his name.
JUSTICE MATTHEWS: Uh-huh, sure.
KAREN BREWSTER: And I wanted to talk about him or some of the other --
JUSTICE MATTHEWS: Well, he was a great friend. We served together for 20 years.
Just a wonderful man to be able to work with. Yeah, we were -- we were friends throughout the period.
Not that we always agreed, but when we disagreed, we even enjoyed that.
KAREN BREWSTER: Yes. In working with the same person for 20 years -- JUSTICE MATTHEWS: Yeah.
KAREN BREWSTER: -- do you become friends? JUSTICE MATTHEWS: Uh-huh.
KAREN BREWSTER: And do you see each other outside of the court setting?
JUSTICE MATTHEWS: Uh-huh. I did with Jay a lot. Uh-huh.
Because we played tennis for exercise, and so we'd often play either doubles or singles.
KAREN BREWSTER: But that's not always the case you --
JUSTICE MATTHEWS: No, not at all. I mean after Jay retired why I didn’t have a similar exercise partner, but I still got along fine with the other justices.
And Justice Boochever -- Chief Justice Boochever just passed away was great to work with, actually.
He was such a conscientious man. He was just such a hard worker.
I remember when he produced an opinion that I was pretty impressed by, I asked a couple of his clerks, did you guys do this? They said no.
He just locked the door and there it is. So he was very productive and very talented.
MARILYN MAY: How do you like working with the law clerks? What's your relationship been like over the years with the many law clerks that have gone through your chambers?
JUSTICE MATTHEWS: Well, it's almost always good. I like them.
It's a -- I had a tradition of going to lunch with them almost every Friday.
And so I like them generally as people, and I stay in touch with quite a few of them. So I have to change a battery here.
MARILYN MAY: Okay. Now, we're just waiting 10 seconds.
KAREN BREWSTER: Ok. That's close enough I would say. I want to move us around a little bit in our conversation.
I know that during your years on the supreme court you made it a point to travel around Alaska and go to the different courts.
JUSTICE MATTHEWS: Right.
KAREN BREWSTER: I'm wondering if you could tell us a little bit about that work, and what you saw, and what your feelings are about rural and urban justice in Alaska?
JUSTICE MATTHEWS: Well, I tried to visit every operating court when I was chief justice just to see what we were administering.
And fell short in only one respect, and I didn’t go to Unalaska, Dutch Harbor.
But we didn’t have -- at the time we didn’t have a magistrate or a judge there so, but we did have employees so in a way it could be excused.
What I saw was a very diverse system that was for the most part fairly handling the questions that were presented. And the problems with Bush justice are mostly not problems with adjudication.
They're problems with not enough police. And there are some real problems with not having enough police.
I mean there're certain -- certain people in certain villages can be terrorized for a time before any police can come there.
And several instances were described that actually were -- never made the newspaper,
so it is a big problem, but it's not primarily a court system problem.
It's a problem of having people spread out too thinly, and not being able to afford on the spot police protection.
KAREN BREWSTER: What about people in rural Alaska getting access to the courts and be served by the courts, you know, if you live in a village 200 miles from Bethel versus you live here in Anchorage and being able to have services?
JUSTICE MATTHEWS: Well, being served by the courts usually means a civil action or being sued in a civil action.
So that can be a problem. It's not primarily a problem of distance, though.
I think it's a problem if you're sued by and you live in a village it's a problem not being able to afford a lawyer.
Not very different from living in Anchorage and not being able to afford a lawyer.
So the actual distance problems we've always been sensitive to and for a long time we've allowed participation by telephone.
So that's a little second rate, but it's okay in most cases.
Short of when you actually go to trial -- when you actually go to trial you want to be personally present but for motions and so forth why it's generally okay.
So, you know, I don’t know that anybody is really advocating that we have more courts in more places.
I mean there're always a few places where you might put a court and maybe -- and there are always a few places where you might argue that we don’t need a court, you know.
For a long time I was suggesting that we put -- get a magistrate for Sand Point. That seemed like a good place.
I don’t know if we have magistrates in Sand Point or not now.
MARILYN MAY: I don’t think so.
JUSTICE MATTHEWS: Yeah. Maybe, you know, the decision not to might have been the right decision anyway,
but basically I don’t think the problem with Bush justice is a problem of not having enough courts in enough places.
It's a problem of having lots of people who can’t afford lawyers.
KAREN BREWSTER: Well, in some places there's a negative feeling about the police and a negative feeling about the court system and that whole process because of --
JUSTICE MATTHEWS: Like South Carolina.
KAREN BREWSTER: I don’t know. I've never been to South Carolina.
JUSTICE MATTHEWS: Not so much the police, but about court systems especially distant court systems.
KAREN BREWSTER: And I don’t know any --
JUSTICE MATTHEWS: But I mean there are some places like that.
KAREN BREWSTER: You did not find that in Alaska?
JUSTICE MATTHEWS: No, not at all. I mean there're some levels of society where the police are not welcome maybe, but that's always going to be the case.
You know, I don’t -- I don’t know that that is really the case in Bush Alaska at all.
I mean, in my travels why the people I talked to always wanted more police.
And negative feelings about the court system, well, you know, I mean basically the courts are activists, liberal judges, I mean, but that's -- that has only an abstract ring when we're talking about the actual administration of justice in the state court system which -- when, you know, we're dealing with trying to affect
procedures so that we have a fair adjudication of the ordinary civil and criminal cases that come before the courts and that's not an ideological or activist business at all.
It's a question of competence.
And I do think that on the whole we have a very competent system.
KAREN BREWSTER: Is there anything in particular you might change about our judicial system if you had an opportunity?
JUSTICE MATTHEWS: You know, there are always some changes. I think the biggest problem I see is that the civil jury trial is too expensive for all but the biggest cases.
So any change that we could effect to mitigate that problem would be good.
But it's difficult because there is a state constitutional right to a civil jury trial.
So you have to persuade both sides that they -- that they shouldn’t have one. But it is just too expensive.
So if you've got a twenty thousand, fifty thousand dollar case that's actually contested, it will be too expensive to try.
You might have to do it anyway, but it would be too expensive.
That's the biggest problem that I see. Having pro-temmed a lot in the criminal side.
I think the criminal jury trial as it is done in Alaska is actually a very effective institution.
MARILYN MAY: Can you describe your pro-tem experience a little bit?
JUSTICE MATTHEWS: Well, I've been doing -- as a trial judge I've been doing criminal jury trials for -- for the past years since my retirement.
KAREN BREWSTER: You retired in 2009?
JUSTICE MATTHEWS: 2009, but then I worked for six months after that to clean up the cases.
KAREN BREWSTER: So I just want to interrupt with an explanation for us non-legal people what being a justice pro-tem is?
JUSTICE MATTHEWS: Well, you're just the trial judge.
KAREN BREWSTER: You're a substitute. You're --
JUSTICE MATTHEWS: I'm a substitute. That's exactly right. And when the -- when there are more trials than available judges, why they call on a roster of pro-tem retired judges who are willing to conduct the cases, and I've enjoyed it.
KAREN BREWSTER: Why did you volunteer to do that?
JUSTICE MATTHEWS: Well, I needed some work. I didn’t need the money, but I just like to stay active.
MARILYN MAY: And you had never been a trial judge, so how different was that?
JUSTICE MATTHEWS: It was -- it was interesting. That's what they say you should do when you retire.
Take up something new. And this was new enough, so that I think it fit that bill.
And I hope to do it some more.
KAREN BREWSTER: So have you also been on civil cases as pro-tem?
JUSTICE MATTHEWS: Yes. Yes. Not as much though.
I -- I've been doing also pre or appellate mediation, that is someone selects cases that are suitable for mediation before they're argued before the Alaska Supreme Court.
So I have been doing a few of those and the last one that was scheduled I asked my assistant what the name of the case was,
and irony of ironies it was a case where I was the trial judge.
So I said I better not sit on that one.
KAREN BREWSTER: Well, maybe you can say a little bit more about mediation.
That was one of the questions, but I didn’t -- wasn’t going to go there, about using alternative mechanisms before going into a regular court.
Are those effective?
JUSTICE MATTHEWS: I think mediation can be good and I think arbitration can be good, too if,
for example, as an alternative to a civil jury trial, why, I think one thing the court could do, with a rule change,
is to offer as an arbitrator the assigned superior court judge and just on a parallel set of rules.
And with limited review, the sort of review we have from arbitrations generally and limited or no attorneys’ fees.
Just the whole idea of being to keep the stakes as low as reasonably possible and streamline the system as much as we can.
I think that -- I think some people would welcome that, and it would be a good service.
KAREN BREWSTER: What's the difference between mediation and arbitration?
JUSTICE MATTHEWS: Mediation is the third party is trying to reach an agreement between the parties. Arbit -- an arbitrator decides.
KAREN BREWSTER: Have you had any experience with tribal courts or mental health courts?
JUSTICE MATTHEWS: I did mental health court when I was substituting in Juneau.
And it seems like it's well functioning and it's -- it's, you know, you're there basically to support as much as possible and coerce as needed.
But it's -- I think it's fine if it -- and I think you never know quite about the efficacy studies or I suppose you can know, but, you know, a lot of what you hear is anecdotal and so you wonder.
But from what I have heard is it's pretty favorable. People really get involved in it, why, they can be helped a lot.
KAREN BREWSTER: With your experience, what did that feel like?
JUSTICE MATTHEWS: But, I was only there as a substitute, so I mean I'm just there as a temporary cheerleader, and maybe to speak harshly to a couple people, that's all.
KAREN BREWSTER: I wondered how it might feel different being a judge with a mental health court setting versus being a judge on a criminal case or in the supreme court?
JUSTICE MATTHEWS: Well, they do it all, you know, and especially in Juneau where they do it all and so, you know, it's not a burnout job.
Now, so that's nice.
Tribal courts -- I talked to our magistrate in Kake once and they were as I understood it they were using their tribal court for corrections.
Maybe by deferral or maybe they were just informal deferrals, where usually a young person would get in trouble and instead of being prosecuted the prosecutor who would be actually in Ketchikan, Juneau or Sitka maybe
would say to this fellow who was both our magistrate and also a tribal court leader take care of him would you.
And they'd have something like a -- I think they called it a talking circle.
And so they would spend a lot of time with the accused, and try to explain it at length what they had done that was wrong.
It wasn’t really adjudication. I mean you're there because you have been adjudicated or they assume that to be the case anyway,
and then they work out a plan for rehabilitation supervision.
I mean the community's very much involved and so it has -- it has community generated pressures that you can imagine would work well in a small and more or less tightly knit place.
That sounded very promising to me, but that's about the only experience I've actually have.
KAREN BREWSTER: It seems clear that you very much enjoyed your career as a justice and continuing on.
Did you find any of it stressful? To me, it seems like it would be an extremely stressful job.
JUSTICE MATTHEWS: It has its own stresses, but no, I mean, generally speaking I didn’t think it was stressful at all.
And you see these justices on the supreme court, I think they have the highest life expectancy of any profession maybe short of very successful artists.
They seem to last a long time also.
So I'm sure they have stresses, but there's something fulfilling about being able to continue to do useful work as you age too, so--
No, I can’t say that I ever thought it was stressful.
It's not nearly as stressful as wondering whether you're going to get a promotion to assistant foreman, you know, in a job that involves physical work or something like that.
KAREN BREWSTER: Well, you served 32 years, is that correct?
JUSTICE MATTHEWS: Yes.
KAREN BREWSTER: And looking back on that long career, what do you consider your legacy or lasting contribution to the legal and judiciary system in Alaska?
JUSTICE MATTHEWS: I'm not sure. I'm -- basically I was a non-agenda judge and I tried to pay appropriate attention to every case and decide it as best as it could be decided in accordance with legal principles.
So, I mean, that's kind of a general answer. I guess, becoming a justice in a young state at a pretty early time,
since the state became a state, why, you know, I think there was a special responsibility to pay attention to the unique provisions of the Alaska Constitution.
There're unique what I would call good government provisions of the Alaska Constitution, unique natural resource provisions, the common use, equal access clauses.
And with every -- every interpretation you give of these clauses, why, you're giving the clause a concrete meaning.
And so I tried to with reference to those clauses but not uniquely to those clauses, but some of the most interesting cases were the -- were the cases where the unique clauses of the Alaska Constitution were involved.
And with reference to those cases, why, I trust that I have been faithful to the letter and the spirit of the constitutional founders.
That's a legacy of sorts.
But there's specific provision that of -- there's a specific result that came about through about three cases that I'm proud of, and it's almost never mentioned by anybody.
And it is that in Alaska now the police when they're interrogating a suspect in the station house at least, have to record the whole interrogation.
And that came about because we were getting, especially before there was a court of appeals, we were getting cases where there was a dispute as to what a defendant being interrogated had actually said.
And oftentimes there would be no recording, there would be notes and then they would be recording after -- after a while maybe.
And actually to decide the sensitive questions as to whether Miranda and its related rules has been complied with you really need to know exactly what was said.
And we'd see case after case where the defendant’s version would be presented and the police version would be presented and quite naturally why the police version was almost always accepted.
And we just thought that -- I thought that it's totally unnecessary to have this.
We need something more reliable and so first we suggested and then we mandated that -- that all interrogations be recorded.
And it's been very, very good reform and it's been in effect for more than twenty years, and we haven’t had any problems with it at all.
And many states have similar results in some cases by statute. Some states do without.
I think the federal system still does without, and I don’t think the fact that they do without really reflects well on the quality of the justice they administer.
So I think -- I think that's -- that's one thing that we've done well.
KAREN BREWSTER: I was wondering if there are any particular decisions that the supreme court made that you felt your opinion as the majority you were particularly proud of a decision that was made?
JUSTICE MATTHEWS: Well, not especially. You know, the belief is that all the cases as they come to you are equal,
why they're important to the parties so -- so I would be reluctant to single one out.
KAREN BREWSTER: Sounds like a little when we talked earlier that Zobel decision may have been something that you were -- felt particularly --
JUSTICE MATTHEWS: I wouldn’t say that. No, it was just a -- it was just of consequence in my -- to my near non-retention.
KAREN BREWSTER: Okay. I'm wondering if after your long career looking back on it -- we just talked about your accomplishments, is there anything that you maybe regret or wish you'd done differently or an opportunity you wish you had followed or something?
JUSTICE MATTHEWS: In my career? KAREN BREWSTER: Uh-huh.
JUSTICE MATTHEWS: No, not in my career. I'm very happy to have been a justice on the Alaska Supreme Court.
KAREN BREWSTER: Something that not in your career?
JUSTICE MATTHEWS: No, no, I wouldn’t say so. I'm -- I'm very happy with my family too and -- and --
KAREN BREWSTER: You didn't wish that you'd become a trial lawyer instead of a justice? JUSTICE MATTHEWS: No. MARILYN MAY: Trial judge? KAREN BREWSTER: No, even a trial lawyer?
JUSTICE MATTHEWS: Well, I was a trial lawyer. KAREN BREWSTER: I know, but --
JUSTICE MATTHEWS: I know about that. KAREN BREWSTER: No, that you continued to do that --
JUSTICE MATTHEWS: Well, that's why I didn’t --
KAREN BREWSTER: Or become a district attorney, I don’t know, something other than being a justice?
JUSTICE MATTHEWS: One reason I didn’t try to campaign when -- when I was being opposed in my first retention election is I had the consoling thought that I always enjoyed being a lawyer and I could certainly after just three years on the bench I could very easily go back and do it some more.
So no, I would have been happy there too, but this has been -- has been good for me.
MARILYN MAY: And for us. JUSTICE MATTHEWS: Yeah.
KAREN BREWSTER: Can you think of anything else? MARILYN MAY: No.
KAREN BREWSTER: Is there anything else that --
JUSTICE MATTHEWS: I thought you were asking me about any decisions that I made that proved to be wrong.
KAREN BREWSTER: Well, you've said there's no right or wrong, but you can -- are there any decisions that --
JUSTICE MATTHEWS: Well, I hope I haven’t said there's no right or wrong.
There are decisions that, you know, in retrospect you might wonder whether a different result would have been better, but
I think really the operating assumption of an appellate court judge is that we speak through our opinions
and maybe if I were fully retired and would never work again, why, I might talk about a few, but my reflex is to simply stand on what was written.
KAREN BREWSTER: Well, that's why -- yeah, I didn’t --
JUSTICE MATTHEWS: Right. KAREN BREWSTER: I didn’t know that if I could ask or how one would ask --
JUSTICE MATTHEWS: Right. KAREN BREWSTER: -- if you felt like you've made the wrong decision -- JUSTICE MATTHEWS: Right. KAREN BREWSTER: -- at the time?
JUSTICE MATTHEWS: Right, yeah, who knows. I mean I can -- I certainly have reflected on various decisions and wondered whether it was the best thing at the time.
On the other hand, you know when you read about cases decided by the Supreme Court of the United States or maybe another state supreme court, you know --
don’t know very much about it and you wonder how would I have decided this.
It's -- your almost always when you get into it more deeply or you're subject to being wrong because you're not in the whole process.
You haven’t read the briefs. You haven’t heard to the oral argument.
You haven’t had the benefit of whatever history is behind it and you haven’t had the benefit of your colleagues’ conference opinions.
So -- so your sort of lay opinion as a distant observer of the appellate process is unreliable.
I think in the same way your after the fact thoughts about whether a decision was correct
is subject to the same sort of feeling because you don’t remember everything that impelled the decision at the time, so that's one factor to keep in mind. KAREN BREWSTER: A little --
JUSTICE MATTHEWS: Another thing I read a book that -- an obscure book some -- about umpires.
A novel, and then the author, I guess, was an umpire for a while and he has one umpire saying to another who's trying to make the major leagues is,
"You have to be man enough to go to the grave with your bad calls."
It's not exactly like that on the appellate bench, but -- because you can reverse them and sometimes cases are --
precedents are reversed, but rarely and when it's done, it's an informal way.
KAREN BREWSTER: Unless there is anything else that we haven’t discussed that you wanted to talk about?
JUSTICE MATTHEWS: Not really. I've enjoyed it.
MARILYN MAY: Thank you very much. KAREN BREWSTER: Thank you very much for your time. We really appreciate it. Thanks.