Harry O. Arend:
Alaska Bar controversy claims first judge
By Randy M. Olsen
Harry O. Arend was acclaimed as an unusually kind and gentle man, but who through an accident of timing lost his seat on the Alaska Supreme Court. The drama of his non-retention arises from the heady days of the transition of government from territorial status to Alaska statehood, with uncertain and developing administrative frameworks for the state court and bar, and the usual mix of strong Alaska personalities.
On July 16, 1959, newly-elected Governor Bill Egan appointed the first members to the newly-formed Alaska Supreme Court: John Dimond, Walter Hodge and Buell Nesbett. Hodge was convinced the Supreme Court would have its primary place of business at the state capital in Juneau, so he moved to Juneau and bought a home. Nesbett, however, was selected as the first Chief Justice, and the two conflicted over where the court would sit. Nesbett decreed that the court would sit primarily in Anchorage. Hodge responded by resigning, with some bad feelings, and was soon appointed to a vacancy in the federal district court. On March 12, 1960, eight months after the Supreme Court was first organized, Arend was appointed to fill the position vacated by Hodges resignation.
By operation of the state Constitution, after three years of service Alaska Supreme Court justices are required to have their names placed on the next statewide general election ballot for retention. If retained, the justice is not considered for retention again until 10 years have passed. The general elections were scheduled every two years.
Dimond and Nesbett were retained without incident when their names appeared on the ballot in 1962. Because Arend was appointed eight months later, however, his name would not be placed on the ballot until 1964.
Following the retention of Nesbett and Dimond, a controversy arose regarding the process for disciplining of attorneys in the state. Disciplining of attorneys had been the province of the Alaska State Bar Association. Many complaints against attorneys were apparently taking what Chief Justice Nesbett considered too long to resolve, or perhaps he disagreed with the decisions of the bar association in some individual cases. Whatever the reason, by the Supreme Courts power to administer all courts, including the power to decide who practices before the state courts, Nesbett determined that all disciplinary matters would be considered in the first instance by the Supreme Court. He took this action in the face of counsel that the procedure was unwise. Nesbett also required the bar association to surrender its files of attorney complaints, as well as money being held in an Anchorage bank to fund its administrative operations.
The bar association was upset, and did not convey the funds. Nesbitt issued a writ for the seizure of the bank account. Thomas Stewart, then serving as the statewide court administrative director, counseled Nesbett against the action, but in fulfillment of his duties accompanied a peace officer to the bank to serve the writ. At the service of the writ the bank officer asked for an additional day to decide how it would respond. Stewart counseled the officer to grant the extension, and Stewart and the peace officer withdrew.
On the following day at the appointed time Stewart and the peace officer appeared, and the bank teller, receiving instructions from the banks attorney by telephone, first asked the officer if he were armed. The officer pulled back his coat to reveal a handgun in a holster. The teller spoke into the phone with the attorney, and then asked the officer, May I see your gun? The officer shrugged, brought out the weapon, showed it for a moment, and put it back beneath his coat. The teller then surrendered the bar association funds. Within hours, Anchorage newspaper headlines boldly announced that the Alaska Supreme Court had seized the Bar Association bank account at gunpoint.
The Bar Association filed suit against the Alaska Supreme Court in United States District Court. The controversy was ultimately resolved when Chief Justice Nesbett adopted the State of Washington scheme whereby attorney discipline is initially considered by the bar association, with formal recommendations, and additional opportunities to object and respond, to the Alaska Supreme Court.
Before the dust had settled, however, Justice Arends name had come up for retention on the 1964 ballot. Many members of the state bar, in the midst of the conflict with the Supreme Court, campaigned against Arends retention. Opposition to his retention was especially strong in Anchorage, where he was not as well known as in Fairbanks, and also where the largest block of voters resided.
Retention elections were still a new phenomenon in the new state, and Arend resisted campaigning on his own behalf. He felt it would be undignified and unseemly for a judicial officer to promote his own retention. There were some individual attorneys who devoted their own funds and efforts at opposing what they considered unfair attacks, but Arend did not campaign. It was generally held that the opposition to his retention was a show of force by the bar membership in its on-going controversy with the Supreme Court. Because of the highly organized attack and his own silence, Arend was not retained in 1964.
Because of Hodges resignation and Arends appointment eight months after the first appointments, Arend had the poor timing of not being on the first retention ballot when Nesbett and Dimond were retained, and then to be on the ballot when the state bar was in an active conflict with the Alaska Supreme Court. A vote either before or after the controversy had resolved may have produced a different result. Justices Nesbett and Dimond retired from the court before they were required to stand for retention again.
When touring the new Fairbanks Courthouse in 2003, retired District Court Judge Hugh Connelly, who had worked with Justice Arend in Fairbanks before and after statehood, paused at Justice Arends photograph in the Superior Court chambers area. He shook his head, saying, What happened to him was unfair and outrageous. He was a kind and decent man, and did not deserve what happened to him. He was a tremendous individual, a terrific guy, and never had a bad word to say about anyone. Justice Jay Rabinowitz, who succeeded Arend on the Alaska Supreme Court, later stated, Judge Arend was an incredibly fine person. The man was completely honest; very humble; very gentle. He was helpful to everyone who associated with him.
Arend stated after the election that he bore no ill will towards those who opposed his retention. He said, I can only hope that much good will come out of the contest and that there will develop greater understanding and cooperation between the bench and bar in the best interest of all our citizens. . . . Alaska has dealt kindly with my family and me through the past 31 years. We shall continue to do all in our power to serve the state and its people whether in public office or private life.
Arend remained on the court until Jay Rabinowitz was appointed in January, 1965. Several decisions of the Court were issued with his name as a participant as late as March, 1965. Those cases had already been briefed and argued before he left the court. Upon his leaving the court Nesbett paid tribute to Arend, calling him a man of courage and high moral convictions. Senator Bob Bartlett identified him as a personal friend, and a leading citizen of the state.
A post-script to this story involves Arends death 18 months after leaving the Supreme Court. Following his non-retention he was retained as Regional Solicitor for the federal Department of Interior in Anchorage. On the morning of June 28, 1966, he collapsed on an Anchorage street on his way to his office. He was only 62 years old. Perhaps the controversy and retention campaign were fatal not merely to the judicial career of this gentle, kind, courageous jurist. Certainly the retention election was not merely a professional curiosity to Arend, but was a stressful experience that carried with it a huge personal cost.
A second post-script involves Hodge and Nesbitt. It will be remembered that after butting heads with Nesbett and resigning from the Alaska Supreme Court soon after his appointment, Hodge had been appointed to the federal trial bench. The later law suit filed by the Bar Association against the Supreme Court in the federal trial court was made subject to the unusual practice of appointing a panel of three trial judges to hear the controversy at the trial level. Hodge was assigned to sit on the panel. But for the stipulated resolution of the bar controversy, the appearance of Justice Nesbett as a litigant before Judge Hodge may have been very interesting.