Mailer targets Justice Fabe

An Alaska nonprofit this week fired a salvo against an Alaska Supreme Court justice, sending out a mailer urging voters in Tuesday’s general election to oust that court’s first woman from her position on the bench.

Alaska Family Action Inc. paid for the mailer targeting Justice Dana Fabe. The mailer went out to thousands of Alaskans’ mailboxes earlier this week.

CitizenLink, a Colorado Springs nonprofit, provided most of the money for the campaign, according to a statement of independent expenditures filed with the Alaska Public Offices Commission. Other contributors included American Family Association Action of Tupelo, Miss., and Dave Cuddy of Anchorage.

CitizenLink’s donation arrived Oct. 18. Two days later, Alaska Family Action gave $2,913.50 to Motznik Info Services for a database of addresses. On Oct. 22, the group gave Pyramid Printing another $10,702 for a printing of color postcards mailed at a cost of $17,530.24 in postage.

Dana Fabe became an associate justice of the state’s highest court in 1996 and served as chief justice twice — from 2000-03 and 2006-09; Democratic Gov. Tony Knowles appointed her to that five-member court. Another Democrat, Gov. Steve Cowper, first appointed Fabe to a seat on the Anchorage Superior Court bench 22 years ago.

Fabe’s involvement in five Alaska court cases — two of them originating in Mat-Su — touched off the group’s opposition to her retention on the Alaska Supreme Court bench.

Alaska Family Action Inc.’s mailer accused Fabe of making it possible for teens to have abortions without parental approval; prohibiting Alaska voters from voting on a proposed amendment limiting the rights of prisoners; “editing” the state’s marriage amendment without voter approval; ordering a private hospital to perform abortions; allowing public funds to pay for abortions in Alaska and ordering the state to use tax dollars to give employment-related benefits to same-sex partners.

The mailer cited Fabe’s participation in the following cases as reasons why she should not be retained:

• Planned Parenthood of Alaska v. State, 2007: Fabe wrote the opinion, which stated the 1997 Parental Consent Act did not strike the proper constitutional balance between the state’s interest — protecting a minor from her own immaturity by encouraging parental involvement in her decision-making process — and a girl’s fundamental right to privacy. Fabe, in her opinion, encouraged parental notification as a less-burdensome option to mandatory parental consent.

• Bess v. Ulmer, 1999: Chief Justice Warren Matthews drafted the opinion focusing on ballot propositions restricting Alaska prisoners’ rights, limiting marriage to the union of one man and one woman and transferring reapportionment power to a redistricting board. The state Supreme Court ruled the prisoners’ rights initiative called for a constitutional revision and therefore could not stay on the ballot since a revision required a constitutional convention. The reapportionment initiative remained on the ballot, unchanged. The court as a whole — not just Fabe, as the mailer claimed — deleted the second sentence of the marriage initiative, which stated, “No provision of this constitution may be interpreted to require the State to recognize or permit marriage between individuals of the same sex.”

• Valley Hospital Association v. Mat-Su Coalition for Choice, 1995: The mailer claimed Fabe “ordered a private, non-profit hospital to perform abortions — even though the hospital’s Board didn’t want to.” Fabe ruled against Valley Hospital at the trial court level but did not participate in the state Supreme Court’s consideration of the case, which upheld her earlier ruling.

• State v. Planned Parenthood, 2001: Justice Alex Bryner drafted the court’s opinion, which stated that the state could not simply assert that Alaska’s constitution “extends a diluted form of privacy right — or no right at all — to minors.”

• ACLU v. State, 2005: Justice Robert Eastaugh wrote the opinion when the state Supreme Court unanimously ruled spousal limitations in state benefits programs were unconstitutional because they denied benefits to people “who are absolutely precluded from becoming eligible for those benefits, even though their domestic relationship is not illegal.”

Fabe’s supporters say the mailer’s claims smear her at a time when her proponents have just a few days to effectively respond.

“This was a last-minute attack that has apparently been coming for quite a while,” said former Alaska Supreme Court justice Bryner. “It really goes out of its way to fudge the facts. and the basic point of it is to reject a judge for being impartial, not adhering to a specific political agenda.”

Bryner said Alaska Family Action depicted Fabe as the only justice involved in decisions they put forward in the mailer.

“Most were written by other justices and unanimously endorsed by the full court,” Bryner said.

Jim Minnery, president of Alaska Family Action Inc., on Thursday said the group’s intent was to draw people’s attention to Fabe’s judicial philosophy, not to attack her competence, discipline or standing within the community. He said the reason Alaska Family Action is focusing on Fabe rather than on other justices who participated in drafting opinions it found objectionable is because Fabe is the only justice up for retention this year.

“There are judges who look at the constitution or a law and try to determine what the original intent was,” Minnery said. “Judges with an activist-oriented judicial philosophy look for meanings hiding behind the words of the constitution. In our view, that’s really imposing a values-based mentality on a ruling instead of determining what the fact of the law is.”