Miller v. Carpeneti: Where was the press?

[Crossposted at Celtic Diva’s Blue Oasis.]

Since posting a couple of early A.M.’s ago about a new lawsuit that seeks to overturn provisions of the Alaska Constitution with respect to judicial selection [Ref #1], I’ve learned a whole lot more.

For one thing, the lawsuit isn’t “new.”  In fact, it was filed way back in early July, almost two months ago.

Wow. Somebody in the Alaska press corps was asleep on the job.  Like, for instance, the entire Alaska press corps.  How else could they have missed this?

Thursday, July 2, 2009
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685;

Alaska Voters and Candidate Challenge Process for Selecting State Judges

Two Alaska voters and one past judicial candidate filed suit today in federal court to stop the current plan for selecting state judges in Alaska. The current plan denies ordinary Alaska voters an equal voice in selecting their judges.

In Alaska, a seven member group called the Judicial Council limits nominees forwarded to the Governor for open seats on Alaska’s courts. Governor Palin is then forced to choose one of them, regardless of differences of views on legal matters. Since all nominees allowed to move forward by the Judicial Council may be diametrically opposed to the Governor, the Judicial Council, and not the people, has complete control over who becomes a judge in Alaska. The Judicial Council makeup, with three lawyers selected only from and by the Bar Association, guarantees lawyers have a greater say than ordinary citizens in Alaska in selecting judges who have great power and control over the lives of regular citizens. The suit asks the court to put an end to this inequality and give all Alaska voters an equal voice.

The case arises out of the upcoming retirement of Justice Robert L. Eastaugh from the Alaska Supreme Court. His retirement will create a vacancy on November 2, 2009. The plaintiffs want the court to stop the three lawyer Council members from selecting the nominees for that vacancy. If successful, when Governor Palin has to make her choice to fill the spot, the names in front of her will be picked by a Council that represents equally all the people of Alaska.

Incidentally, the Alaska Bar Rag, published by the Alaska Bar Association, has recently featured editorials expressing concern over the flaws in the judicial selection process.

According to attorney James Bopp, Jr., lead counsel for the plaintiffs, the Alaska plan “gives the Alaska Bar Association a stranglehold on the judiciary. Lawyers in Alaska have enormous influence over who the state judges are, while the ordinary voter is denied the right to an equal voice.” The system needs to be corrected now, before Governor Palin is forced to put another justice on the Supreme Court through an unjust process.

The case is Hinger v. Carpeneti, et al., No. (D. Alaska July 2, 2008 [sic]). The complaint and memorandum supporting the motion for a preliminary injunction are available in PDF format online at the James Madison Center’s website,, under the “Alaska Judicial Selection Challenge” link on Thursday, July 2, 2009.

James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society. [Ref #2]

Maybe James Bopp, Jr. didn’t bother to send his press release to the Alaska press?  Or maybe — look at the date on it — maybe it’s that the Alaska press was distracted by the flabbergasting news made by Sarah Palin the following day as she stood on the banks of Lake Lucille and announced that she planned to resign from her governorship? — an announcement, one must mention, which immediately made the portions of the press release referring to her role in judicial selection obsolete.

Well, however it was the Alaska press missed the boat on this, other people didn’t. A Texas blog for Palin fans posted the press release the same day under the title “Challenge could give Gov. Palin more choices in selecting judges.” On July 6, the Alaska Employment Law blog, operated by several Alaska attorneys, gave a summary of the plaintiffs’ complaint and their simultaneous motion for a preliminary injunction:

According to a Complaint filed in federal court on July 2nd, Alaska’s judicial selection system violates Equal Protection and 42 USC § 1983 by giving disproportionate influence to attorneys on the Judicial Council.  The Council screens judicial applicants and forwards at least two names to the Governor for appointment.  Attorneys elected by the Bar Association comprise three of the seven members of the Council; non-attorney members appointed by the Governor hold three other seats.  The Chief Justice of the Alaska Supreme Court is ex-officio chair of the Council, and, by law, is an attorney.

The lawsuit was filed by three plaintiffs: Kenneth Kirk is a frequent attorney applicant for judicial positions; Carl Ekstrom is a non-attorney member of the Board of Governors; and Ward Hinger is a member of the public.

The plaintiffs are represented by Kenneth Jacobus of Anchorage, and James Bopp of Indiana.

Plaintiffs have simultaneous moved for a preliminary injunction and to consolidate that motion with the merits.  The matter is assigned to Judge Timothy Burgess.

Hinger v. Carpeneti, 3:09-cv-00136-TMB. [Ref #4]

Three days later, the same blog briefly updated with the news that Judge Timothy Burgess of the U.S. District Court for Alaska had recused himself from the case, which was now assigned to Judge Ralph Beistline [Ref #5], and on July 20 reported that Judge Beistline had set September 11 as the date for oral argument on the plaintiff’s motion for preliminary injunction. [Ref #6]

But the first most of us heard on this case was until two days ago, when a brief story by Associated Press reporter Dan Joling turned up on the Anchorage Daily News website [Ref #7], followed by a longer story by Joling posted overnight on both the Juneau Empire‘s and the ADN’s websites. [Ref #8] Interestingly, neither story gave any indication that the lawsuit had been in the Alaska District Court’s hands for nearly two months.  The impression I got was that the lawsuit had only just now been filed, possibly in reaction to the Alaska Judicial Council’s August 21 press release on the bar survey scores for applicants to the Alaska Supreme Court position [Ref #9] being vacated on November 2 upon the retirement of Justice Robert L. Eastaugh.

It was, of course, the announcement of Justice Eastaugh’s retirement that prompted the lawsuit in the first place, as Bopp’s July 2 press release made plain.   So probably the Judicial Council’s August 21 press release did play a role in someone cluing in a member of the press about the lawsuit.  Maybe the plaintiffs or other people knowledgeable about the case are scared that the Judicial Council will meet and select candidates to nominate to Gov. Parnell before they get a chance to get the preliminary injunction they’re seeking.  The plaintiffs seek with the hoped-for injunction to control the nomination process by removing the three attorney members of the Judicial Council — contrary to the Alaska Constitution — from playing any role in deciding which of the 19 remaining candidates’ names should be forwarded to the governor for his  decision on who to appoint to the high court.  If their wish is granted, only Chief Justice Walter Carpenti, chair of the Judicial Council, and the Council’s three public members — two appointed by Gov. Palin and one by Gov. Frank Murkowski — would choose the nominees.

How likely are the plaintiffs to get their way?  Well… I dunno.  But I’m getting a lot better picture of the chances.  Because now that I’ve finally been informed by the press that there’s a lawsuit actively soliciting federal judicial activism to overturn major provisions of the Alaska Constitution, I’ve been doing my best to get hold of all the motions and memorandums that both plaintiffs and defendants have been filing for the last nearly-two-months while the Alaska press wasn’t paying attention.

I intend to educate myself about the legal ins and outs of the case. And now you can too. And you should, because while I do intend to write more blog posts explaining this stuff as best I can, sometimes my life and my up & down moods get the better of my intentions.

So.  Posted tonight on my website for your elucidation and enjoyment, I give you [drumroll and flourish]–

Miller v. Carpeneti: Court filings through August 27

The documents are listed in chronological order.  I recommend reading the last-filed case dated 8/27/09 first, before going back to the earlier stuff.  I’ve also included document numbers when I know them — these are useful because the various documents frequently cite the other documents using these numbers.

Note that the first version of the plaintiffs’ complaint dated 7/2/09 has been superseded by the 7/28/09 version.  That’s also the first piece of paperwork I’ve got in which Michael Miller rather than Ward Hinger is the first-named plaintiff: Hinger apparently dropped out of the case.  This is why it’s now known as Miller v. Carpeneti instead of Hinger v. Carpeneti.

Plaintiffs: Complaint; motion for preliminary injunction

Defendants:  Motion to dismiss complaints; opposition to motion for preliminary injunction

Plaintiffs: Response to defendants

Defendants: Reply


  1. 8/27/09. “Lawsuit asks feds to overrule Alaska Constitution” by Melissa S. Green (
  2. 7/2/09. “Alaska Voters and Candidate Challenge Process for Selecting State Judges” [press release] by James Bopp, Jr. (Terre Haute, IN: James Madison Center for Free Speech).
  3. 7/2/09. “Challenge could give Gov. Palin more choices in selecting judges” [posting of Bopp press release] (Texas for Sarah Palin).
  4. 7/6/09. “DAlaska: Attack on Constitutionality of Alaska Judicial Selection Plan” (Alaska Employment Law).
  5. 7/9/09. “Alaska Legal Miscellanea: Vexatious Litigants, and Alaska’s Judicial Selection Plan” (Alaska Employment Law).
  6. 7/20/09. “Alaska Legal Miscellanea: AJC Challenge” (Alaska Employment Law).
  7. 8/26/09. “Lawsuit calls for changes in Alaska judicial nominations” by Dan Joling (Associated Press via Anchorage Daily News).
  8. 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).
  9. 8/21/09. “Supreme Court Candidates” [press release]. (Alaska Judicial Council; posted on Further information on the candidates for the Alaska Supreme Court position being vacated by Justice Robert Eastaugh are available on the Alaska Judicial Council web page about the position.
This entry was posted in Alaska justice system and tagged , , , , , , . Bookmark the permalink.