Lawsuit asks feds to overrule Alaska Constitution

Update 8/28/09: My attention had been brought to three factual errors in this blog post.  I’m happy to say that only one of them was mine; the other two were in sources I quote here. In any case, factual errors have been highlighted in yellow; my annotations giving corrections are marked in red. Making this post a lot more colorful than originally intended… sorry.  I’ll let you color matters of opinion for yourself. — Mel

Lawsuit asks feds to overrule Alaska Constitution

Although I doubt these jokers said so in their court filings.  [Update: a later story with more detail shows they in fact did; see later portions of this blog post.]  As picked up by the Anchorage Daily News, the Associated Press story bears the headline “Lawsuit calls for changes in Alaska judicial nominations” — seemingly neutral, but missing this crucial political fact.  As, indeed, does the story in full, which reads,

A federal lawsuit says the governing board of the Alaska Bar Association has too much say in nominating state judges.

The Board of Governors of the lawyers’ association picks three of the seven members of the Alaska Judicial Council, which forwards names of judge nominees to the governor.

The lawsuit filed by three Alaskans says that’s too much power for the attorney group.

The lawsuit calls for judicial nominations to come only from the four other members of the judicial council — the chief justice of the Alaska Supreme Court and three members appointed by the governor and confirmed by the legislature.

The lawsuit seeks an injunction stopping the council from forwarding names to fill an upcoming vacancy on the Alaska Supreme Court.

The suit was filed by Michael Miller, Kenneth Kirk and Carl Ekstrom. [Ref #1; emphases added]

The problem here?  The composition of the Alaska Judicial Council is mandated by Article 4 Section 8 of the Alaska Constitution which reads:

The judicial council shall consist of seven members. Three attorney members shall be appointed for six-year terms by the governing body of the organized state bar. Three non-attorney members shall be appointed for six-year terms by the governor subject to confirmation by a majority of the members of the legislature in joint session. Vacancies shall be filled for the unexpired term in like manner. Appointments shall be made with due consideration to area representation and without regard to political affiliation. The chief justice of the supreme court shall be ex-officio the seventh member and chairman of the judicial council. No member of the judicial council, except the chief justice, may hold any other office or position of profit under the United States or the State. The judicial council shall act by concurrence of four or more members and according to rules which it adopts. [Ref #2; emphases added]

A couple of points become immediately apparent:

  • The lawsuit asks the federal judiciary to overrule the Alaska Constitution, while bypassing the proper methods and means of constitutional amendment — i.e., by two-thirds vote of each house of the Alaska Legislature followed by a majority vote of Alaska voters in a general election, or by means of a constitutional convention. [Ref #3]
  • The lawsuit attempts to undermine the checks and balances of our governmental system by placing more power into the hands of the executive branch at the expense of the judicial branch. Under the litigants’ plan, only three members of the seven-member Judicial Council would actually have a say in nominating candidates to fill judicial vacancies: the governor’s appointees. While the Chief Justice of the Supreme Court would remain on the “nominating” portion of the council, the Chief Justice is ex officioshe or he has no vote. [Correction: The chair can and does vote, but only when to do so would affect the outcome. i.e., when his or her vote would be required in order to fulfill the Alaska constitutional mandate that “The judicial council shall act by concurrence of four or more members….”]

Interesting fact: one of the litigants is himself a gubernatorial appointee: Carl Ekstrom is a public member of the Board of Governors of the Alaska Bar Association, with his term set to expire in March 2011. [Ref #4] Ekstrom was appointed in February 2008 by Gov. Sarah Palin and, as public members pf the Board of Governors are subject to legislative confirmation, underwent some vetting by the Alaska Legislature.  You can read the minutes of a joint meeting of the Alaska Senate and House Judiciary Committees where he was asked questions about his interest and qualifications for the appointment. [Ref#5] During the Murkowski administration he was a member of the Faith-Based and Community Initiatives Task Force under Lt. Gov. Loren Leman. [Ref #6] But what’s really interesting is that he’s a member of the nondenominational ChangePoint church in Anchorage (formerly Grace Community Church) [Ref #7] — the same church to which Gov. Sean Parnell belongs. [Ref #8] Nothing wrong with that, exactly — but it certainly brings out some questions if you’re talking — which we are — about a lawsuit which, if successful, would expand the governor’s powers in judicial appointments.

I haven’t had time to research the other two men bringing this suit, but one commenter on the Anchorage Daily News website, fsmith, claims with regard to Kenneth Kirk, an Anchorage attorney with a firm practicing in the areas of family law, estate planning, adoptions, and elder law [Ref #9]:

In December, Morgan Christen, presiding judge in Anchorage, was rated 4.5 of a possible 5.0 in professional competence, fairness and judicial temperament, and a 4.6 in integrity.

Palmer Superior Court Judge Eric Sanders collected an overall 4.0 rating, with a 4.3 in integrity. Other candidates, in order of rating, are: Frank Pfiffner, 3.7; Kenneth Kirk, 2.7; Kenneth Jacobus, 2.5; and another third rater who shall remain nameless, 2.4.

What this means is that attorneys, police, public defenders, guardians ad litem, rated Kirk as eminently flushable, along with Republican political hack Ken Jacobus.

He is suing because he wants to allow governors to appoint “deserving” incompetents. “Deserving” in this instance would mean “raised lots of campaign contributions,” “is much loved by Jerry Prevo,” etc. [Ref #1, reader comments; emphasis added]

[Correction: Police and GALs — along with social workers and probation officers — are surveyed only during performance evaluations for sitting judges who are up for retention election, but are not surveyed during the original selection process. Public defenders, of course, are attorneys, and thus are included in the selection bar survey.]

Is that opinion true?  Well, at the very least the part about Kirk failing in his attempt to become a judge is true. A second, more detailed story by AP reporter Dan Joling appeared overnight on the Juneau Empire and Anchorage Daily News websites, and also reports on Kenneth Kirk’s judicial aspirations, as well as Ekstrom’s position on the Bar’s Board of Directors:

According to the lawsuit, filed last month, Kirk is an attorney who has been rejected for Superior Court vacancies and who would apply for the upcoming Supreme Court vacancy except for the current composition of the council. Ekstrom is one of three non-attorney members of the bar association’s 12-member bar association Board of Governors. His vote is diluted by the nine attorneys on the board, according to the lawsuit. [Ref #10]

[Correction: Kenneth Kirk applied for two superior court positions, once in 1996 and once in 2003, but  in both cases withdrew his name from consideration before the selection process was complete or the Judicial Council had made any decision. Thus, he was not “rejected” for either of those vacancies. This is not unusual: a look through the Judicial Council’s historical selection log shows numerous instances when applicants have withdrawn themselves from consideration.  Earlier this year, Kirk was an applicant for the Alaska Supreme Court, but was not among the candidates nominated by the Alaska Judicial Council for that position. In that instance, the Judicial Council nominated Eric Smith and Morgan Christen; Gov. Sarah Palin appointed Morgan Christen on March 4, 2009.]

The rationale in the lawsuit is that Alaska’s method of judicial selection violates the Equal Protection Clause in the U.S. Constitution’s 14th Amendment by “denying the plaintiffs the equal right to vote” — they want a system in which all Judicial Council members are appointed by the governor (i.e., more executive branch power over judicial appointments) or other elected officials such as legislators.  According to attorneys for the Judicial Council, similar arguments brought before federal courts in Indiana and Missouri have been rejected. [Ref #10]

Well, I have more to say about this, but it’s late and I need to get to bed.  Let me finish with one quote from this more detailed story —

The Alaska system was adopted after extensive debate at the constitutional convention in 1955-56…. [Ref #10]

— and then went on to be ratified by the people of Alaska in 1956 and approved by Congress through passage of the Alaska Statehood Act.  For 50 years it’s been part of the Alaska Constitution, and for 50 years there has been no will of the Alaska Legislature or the people of Alaska to amend the Alaska Constitution to change it.  Because, it turns out, our system (a system called the Missouri Plan used by at least 12 other states) actually works pretty well.

Unless you’re an attorney who other members of the bar consider to be less than qualified to be a judge.  Unless you’re a conservative who considers the state’s right to govern itself to be preeminent — until the state’s own Constitution gets in your way.

More to come in the next coupla days.


  1. 8/26/09. “Lawsuit calls for changes in Alaska judicial nominations” by Dan Joling (Associated Press via Anchorage Daily News).
  2. Constitution of the State of Alaska, Article IV, § 8, “Judicial Council.” Adopted by the Constitutional Convention February 5, 1956; ratified by the people of Alaska April 24, 1956; became operative with the formal proclamation of statehood January 3, 1959.
  3. Constitution of the State of Alaska, Article 13, “Amendment and Revision.”
  4. 7/10/09 (updated). “Board of Governors: 2009-2010.” Alaska Bar Association.
  5. 2/18/08. Minutes of the Joint Meeting of the House Judiciary Standing Committee and Senate Judiciary Standing Committee.  Alaska State Legislature. 1:07 PM.
  6. 6/17/03. “Faith-Based and Community Initiatives Task Force.” Office of the Lieutenant Governor (Loren Leman), State of Alaska. Cached copy through Google.
  7. Google search on “changepoint” + “carl ekstrom.”
  8. Google search on “changepoint” + “sean parnell.”
  9. Kenneth Kirk & Associates (website of law firm).
  10. 8/27/09. “Lawsuit presses for changes in judicial nominations: Group says Alaska Bar Association has too much power in process” by Dan Joling (Associated Press via Juneau Empire; also published in the Anchorage Daily News).
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