Nesbett Courthouse in downtown Anchorage, part of the Alaska Court System

I’ve done a lot of reading over the last couple of weeks about Miller v. Carpeneti (originally Hinger v. Carpeneti), the lawsuit against the Alaska Judicial Council due to be argued before Judge John H. Sedwick in the U.S. District Court for the District of Alaska this morning at 10:00 AM.  (Yes, I will be there.)  I intended to write about about some of what I’ve learned over the Labor Day weekend.  But, as I more-or-less predicted last time I wrote about it, my up and down moods got the better of my intentions.

Lucky for me that a real live journalist took note of the case, enough to do a real story about it. No, I’m not talking about Associated Press reporter Dan Joling’s stories which scooped everyone else in the Alaska press a whole almost-two-months after the plaintiffs distributed a press release about it far and wide — I’ve already written about that.¹ No, I’m not talking about the Anchorage Daily News editorial on the case, though I agree with the ADN’s criticism of the plaintiffs’ hypocritical (my word, not ADN’s) attempt to solicit federal judicial activism to overturn two provisions of Alaska’s Constitution² (along with a related Alaska Statute). Nor am I talking about the Fairbanks Daily News-Miner editorial, which ventured to opine that the lawsuit was “unlikely to succeed” while betraying no thoughtfulness whatsoever about the inadvisability of politicizing Alaska’s judicial selection process by making it prey to whatever happen to be the “views and values” of a particular governor — never mind a judicial candidate’s actual qualifications.³

No, the real live journalist I’m talking about is Scott Christiansen of the weekly Anchorage Press, who put together an excellent story covering much of the most essential background needed to understand the political whys and wherefores of this case.  His article is called “Battle for the bench – Why do conservatives want to change the way Alaska picks its judges?”, and if you haven’t already, I urge you to read it in full.⁴

The plaintiffs

The crucial facts about this politics behind this case are implicit in the title of Christiansen’s story, and in its initial paragraphs:

James Bopp won’t talk about the motivations of the Alaska plaintiffs he represents.

Bopp is an Indiana attorney suing the State of Alaska in federal court in an attempt to change the way Alaska selects its judges. Asked why his plaintiffs want to upend the system, he stonewalls and refers to the arguments in the small but growing case file that opened in July as Hinger v. Carpeneti at the federal courthouse in Anchorage.

“I have no comment about their motivations, assuming they have any beyond the general propositions that are involved here,” Bopp says.

But of course they have motivations.

From all appearances, this is a right-wing conservative attack on the Alaska judicial system. Bopp’s three original plaintiffs certainly all have right-wing street cred. One left the lawsuit after landing a job with the new administration of Alaska Governor Sean Parnell. Another is a management employee at ChangePoint, the Anchorage mega-church that last week hosted a big kickoff for a citizen initiative on abortion law. A third is a conservative attorney. He was passed over for previous judicial appointments when he applied.⁴

Those original three plaintiffs were Ward Hinger, Kenneth Kirk, and Carl Ekstrom. I’ll take them in reverse order:  Carl Ekstrom is a development director at the Anchorage megachurch ChangePoint⁴ (formerly Grace Community Church) — which, as I noted in my first post about this lawsuit, just so happens to be the same church attended by Gov. Sean Parnell.⁵ He’s also a public — that is, non-attorney — member of the Board of Governors of the Alaska Bar Association,^4,5 appointed by Gov. Sarah Palin in February 2008 with his term set to expire in March 2011.⁵

Ekstrom’s position on the Board of Governors is important to the case the plaintiffs are trying to make: he is one of three non-attorney members appointed to the Board by the governor and confirmed by the governor, whereas the Board’s other nine members are attorneys “elected exclusively by members of the Alaska Bar Association,” as the plaintiff’s complaint puts it, and not subject to legislative confirmation. This composition and method of selection is set by Alaska Statutes §§ 8.08.040-050. The Board of Governors in turn appoints the three attorney members of the Alaska Judicial Council (per Article IV, § 8 of the Alaska Constitution). It’s this sequence of selections and appointments upon which the plaintiffs’ argument turns: they contend that because non-attorney citizens are not permitted to vote for the nine attorney members of the Alaska Bar’s Board of Governors, and because those nine attorney members exert supermajority control over the appointment of three of the seven members of the Alaska Judicial Council, that the “one man one vote” principle of U.S. Constitution’s Equal Protection Clause (Fourteenth Amendment) is violated.⁶

The Judicial Council’s attorneys, however, argue — as Christiansen’s article summarizes –

that some of the precedent cases cited by Bopp—“one person, one vote” decisions from past civil rights decisions—shouldn’t apply to judicial selection because the process is not based solely on an election.

“They apply only when a state decides to select officials through elections. They are irrelevant when the state has chosen a non-election method to select certain officials,” state attorneys wrote in a motion to dismiss the case.⁴

Kenneth Kirk is an Anchorage attorney practicing in the areas of family law, estate planning, adoptions, and elder law;⁵ according to Christiansen,

He’s also done some in-court activism on behalf of James Dobson’s Family Research Council, a major national policy arm of the conservative Christian movement. When the FRC wanted to file a friend-of-the-court brief in Alaska lawsuit over parental consent and minors choosing abortion, they called on Kirk.⁴

Those are some conservative credentials, all right.

Kirk is also a former judicial candidate.  He 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. Earlier this year, Kirk was among the applicants for the Alaska Supreme Court seat vacated by Justice Warren Matthews, 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;⁵ Gov. Palin appointed Morgan Christen on March 4, 2009 — a matter of controversy to anti-abortion conservatives, such as the Alaska Family Council headed by Jim Minnery, which lobbied Palin vigorously against Christen because she’d been on the board of Planned Parenthood in the mid-1990s — even though Planned Parenthood did not provide abortions in Alaska until 2003, according to the Anchorage Daily News.⁷

(Not that conservatives were terrifically happy with the Eric Smith as a choice either: he had in the 1980s been executive director of the public interest environmental law firm Trustees for Alaska, which in 2009 was opposing Palin over whether beluga whales should be considered an endangered species.⁷ Smith’s 1995 application to the Palmer Superior Court, to which he was appointed in 1996 by Gov. Tony Knowles, showed membership in several other environmental organizations.⁸)

But you begin to see where this is going: the hot-button issue of abortion.  But is it Kirk’s motivation for being a party to the case?  If it is, he wasn’t about to tell Scott Christiansen.

According to the lawsuit’s complaint, Kirk, “would have applied for the current vacancy, and would like to apply in the future but for the composition of the Alaska Judicial Council, which is empowered to review his application and make nominations…”

[Plaintiffs' local attorney Ken] Jacobus says Kirk’s standing in the lawsuit is simple. Kirk is a conservative among liberals at the Alaska Bar Association and his ABA peers have too much say in the selection process. “I can’t say that Kenneth Kirk was not selected [as a Judicial Council nominee for the Alaska Supreme Court] because he was a conservative, but being conservative certainly doesn’t help,” Jacobus says.⁴

Well, that’s one theory.  Another theory is that Kenneth Kirk didn’t stand out among the six applicants for Justice Matthews’ seat on the Alaska Supreme Court (another of whom was Jacobus himself) as being, in accordance with the Alaska Judicial Council’s bylaws,

most qualified based upon the council’s consideration of their: professional competence, including written and oral communication skills; integrity; fairness; temperament; judgment, including common sense; legal and life experience; and demonstrated commitment to public and community service.⁹

And let me tell you: the Alaska Judicial Council’s consideration of these factors is no small or casual thing.  It’s an effort requiring months of work by Judicial Council staff and the Council members themselves, following procedures that are considered to be amongst the best in the nation for merit selection of judges.  Details on that are for another post, if my life circumstances and up and down moods allow for it, but the details are already out there anyway — at the Judicial Council’s website,¹⁰ and in several articles published in the UAA Justice Center’s quarterly Alaska Justice Forum — “A Look at Judicial Selection in Alaska” by Antonia Moras¹¹ which describes the procedure, “Judicial Selection in the U.S.” which compares Alaska’s judicial selection method with those of other states;¹² and Selecting and Evaluating Alaska’s Judges: 1984–2007″ by Teresa White Carns,¹³ which is a “short” version of the Judicial Council’s lengthy report of the same title.

This is where I need to come forth and identify myself, as I have in other posts on my blog that you may not have read, that I work at the UAA Justice Center — in fact, I do all the layout for the Alaska Justice Forum, including creating all the pretty tables and charts you find in it.  I’ve been doing that job for 19 years, including most of the ten years from 1990 to 2000  that the Justice Center was the independent contractor that did data analysis and prepared reports on the Alaska Bar surveys that form one component of the Judicial Council’s evaluation of judicial candidates, as well as surveys for retention elections which polled peace and probation officers, jurors, guardians ad litem, social workers, and CASAs along with the bar.  It’s in the course of this work that I became aware of the Alaska Judicial Council’s role in nominating candidates to judgeships and evaluating judges standing for retention election, not to mention doing lots of first-class research on justice issues in Alaska — and to develop the great respect for it I have.  So when I heard someone complain that s/he or a candidate s/he favored didn’t get nominated because s/he was “too conservative” or “too liberal” — I have a difficult time thinking anything other than “sour grapes.”

Which is not to say that I’m expressing anyone’s view other than my own: I do not speak on behalf of the Justice Center or UAA, but only as an individual whose work experience has equipped her with knowledge relevant to the issue at hand.  And then I looked more stuff up.

But on to the next plaintiff: the original lead plaintiff Ward Hinger, from whom the first version of the case name, Hinger v. Carpeneti, was partially derived.  (The other comes from lead defendant Justice Walter Carpeneti, who as Chief Justice of the Alaska Supreme Court is also chair of the Alaska Judicial Council — all of whose members are defendants in this lawsuit.) As Scott Christiansen explains, Hinger withdrew from the case after he joined the administration of Gov. Sean Parnell as a special staff assistant working with the Departments of Health and Social Services, Military and Veterans Affairs, Corrections, and Public Safety.  Hinger told Christiansen by email that

he sued “to bring public attention” to the selection process, “and provide all AK citizens a more equal voice in the selection of their state judiciary.”⁴

Hinger was replaced as lead plaintiff by a Michael Miller, who is identified in the plaintiffs’ amended complaint only as a “citizen and registered voter of the State of Alaska” who “resides in Sterling, Kenai Peninsula Borough, Alaska.”⁶

Christiansen tried to get futher information; what he got was this:

Jacobus says he doesn’t know Miller, except that he’s not the same Mike Miller who once served the legislature.  Bopp [lead attorney James Bopp, Jr.] told the Press that everything we need to know about Miller is in the lawsuit; the court filings only describe Miller as an Alaska voter and resident of Sterling.⁴ [emphasis added]

So according to Jacobus, this is not the Mike Miller who served in the Alaska House from 1982 to 1992 and in the Alaska Senate beginning in 1992, where he was Senate President in 1997-1998.  So, the present case Miller v. Carpeneti involves a number of conservatives who

1. hold anti-abortion views;
2. are unhappy with the composition of the Alaska judiciary, enough to file a lawsuit in federal court involving judicial selection ;
3. are represented by lead attorney James Bopp, Jr. of Terre Haute, Indiana; and
4. include as one plaintiff a man named Michael Miller, who did not serve in the Alaska Senate.

Interestingly, turns out that in 2004 a case was filed in Alaska District Court called Alaska Right to Life Political Action Committee v. Feldman, with some interesting similarities: it involved conservatives who

1. held anti-abortion views;
2. were unhappy with the composition of the Alaska judiciary, enough to file a lawsuit in federal court involving judicial conduct guidelines with respect to an issue survey focused on abortion to judges standing for retention election;
3. were represented by lead attorney James Bopp, Jr. of Terre Haute, Indiana; and
4. included as one plaintiff a man named Michael Miller, who was formerly the president of the Alaska Senate.¹⁵

But it’s just a coincidence that a plaintiff in each case was named Michael Miller. They were different Michael Millers. Maybe James Bopp, Jr. of Terre Haute, Indiana just happens to have a pool of Michael Millers in Alaska from whom he can draw to become plaintiffs in his cases.

The plaintiffs’ lead attorney

But regardless of whether the Michael Miller of Alaska Right to Life Political Action Committee v. Feldman is the same as or different from the Michael Miller of Miller v. Carpeneti, it’s the same James Bopp, Jr. of Terre Haute, Indiana.  And if the Alaska plaintiffs have motivations in trying to overturn Alaska’s constitution with regard to judicial selection, so does James Bopp, Jr.

Some background from Christiansen’s article:

Bopp himself is founder of the James Madison Center for Free Speech, a nonprofit that attacks campaign finance laws in court on behalf of conservatives who want to pour money into the business of influencing elections.

“I have a national practice,” Bopp says. “It would be fair to say that I’ve gained a national reputation among Republicans and conservatives… people tend to come to me with their cases.”

Alaska’s social conservatives have sent Bopp into battle before. He’s filed briefs on behalf of disabled people who were against physician-assisted suicide. He’s argued against abortion rights (though Bopp would say he argued “in favor” of a hospital’s right to not participate in abortion), and he led a free speech case in which he represented plaintiffs whose speech is all about limiting abortion rights.

The free speech case was a 2002 attack on Alaska campaign finance disclosure laws. Bopp represented Alaska Right to Life, Inc. in a lawsuit against the Alaska Public Offices Commission. Alaska Right to Life wanted to launch a phone campaign during the last week of the race for governor between Frank Murkowski and Fan Ulmer. APOC said the proposed phone campaign qualified as electioneering. The pro-life organization wanted to spend money without reporting where the money came from, claiming its calls were “issue advocacy” protected by the First Amendment—despite a script that included Alaska Right to Life’s interpretation of each candidate’s views.⁴

But of course, another Alaska case Bopp took on was the aforementioned Alaska Right to Life Political Action Committee v. Feldman 504 F.3d 840 (9th Cir. 2007).  This case involved the use of a partisan forced-choice questionnaire by Alaska Right to Life in an attempt to pressure 16 Alaska judges standing for retention in the 2002 judicial retention election to state their opinions on controversial issues like abortion and euthanasia, and to challenge the Alaska Code of Judicial Conduct’s restrictions on judges’ speech. See Kelly Taylor’s in-depth discussion of this case — most of it readily understood by the intelligent non-lawyer — in the December 2008 issue of the Alaska Law Review, entitled “Silence at a Price? Judicial Questionnaires and the Independence of Alaska’s Judiciary”.¹⁵ Besides giving a good backgrounder on the history of attempts to politicize Alaska’s judicial retention election and organized political attacks on individual judges, mostly due to particular legal rulings which were unpopular with some (mainly conservatives), Taylor’s article demonstrates how the Alaska Right to Life case was but one battle in what she terms “The Nationwide Effort to Politicize Judicial Elections.”¹⁵

And guess who’s at the forefront of that battle?

The Indiana law firm of Bopp, Coleson & Bostrom has been the driving force behind the majority of cases challenging judicial speech restrictions, and its focus is not only on Alaska but on the nation as a whole. In addition to arguing White before the Supreme Court of the United States, James Bopp, Jr. was involved in Alaska Right to Life Political Action Committee v. Feldman, at least three other cases that  went to the circuit court level, and at least six cases that ended at the district court level.¹⁵

White is a reference to the landmark U.S. Supreme Court case Republican Party of Minnesota v. White, 536 U.S. 765 (2002), a major Bopp victory which established a precedent that the Alaska Right to Life plaintiffs depended upon in their effort to declare certain provisions of Alaska’s judicial conduct code unconstitutional.  Again, read the article for analysis; but suffice it to say that one of the issues at stake here is whether Alaska’s judiciary will be forced — as they already are in some other states — to sacrifice their judicial independence and impartiality to the altar of political correctness and narrow partisan ideologies.

Bopp believes that judges’ opinions on controversial issues should be publicized so voters can make informed decisions at the polls. “Anybody who tells you it doesn’t matter what judge you get is a fool,” Bopp said in an interview. “Judges have discretion,” he continued, “[t]heir personal opinions matter and their views matter.” As Bopp explains, judges should be free to express their views and then be expected to enforce the law. Critics believe that, rather than fighting for judicial candidates’ speech rights, Bopp is using the First Amendment to attack judicial independence and make judges “ideologically accountable.”¹⁵

The interview Taylor cites there is “The Big Bopper: This Terre Haute Lawyer Is Exploding the Canons of Judicial Campaign Ethics” by Terry Carter,¹⁶ another good source on Bopp’s background and his campaign to politicize not just the Alaskan, but the American, judicial system.

What’s at stake? As Taylor explains,

Although the Alaska Constitutional Convention briefly discussed possible benefits of electing judges, delegates placed too great an emphasis on judicial independence to adopt an election system of judicial selection. As Judiciary Committee Chairman George McLaughlin warned, the judiciary in an election system is “dictated and controlled by a political machine.” Delegate Edward Davis, citing experiences in Idaho, cautioned that an elected judge is retained or dismissed “completely irrespective of qualifications.” Concerned with minimizing the influence of politics on Alaska’s judiciary, the Convention voted by an overwhelming majority to adopt a merit-based system of judicial selection.¹⁵

This is the system that’s been in use in Alaska for all its fifty years (so far) of statehood.  And it’s not just us. According to the American Judicature Society, as of 2004

thirty-two states and the District of Columbia use some form of merit selection at one or more levels of their courts…. Fifteen states and the District of Columbia use a merit selection plan with a nominating commission—such as the Alaska Judicial Council—for either or both the appellate courts and the courts of general jurisdiction. Nine states use a combination of merit selection and other methods, and another nine use merit selection to fill mid-term vacancies.¹²

Compare Alaska’s merit selection system, designed to find judges with high levels of professional competence and integrity, with the narrowly drawn ideological and political correctness demanded by Karen Lewis, Executive Director of Alaska Right to Life, main plaintiff in Bopp’s lawsuit against Alaska’s Commission on Judicial Conduct:

If a legislator or a judge will not stand up and protect innocent human life in the womb, I do not trust [him] on any other issue.¹⁵

Imagine, then, a system of judicial appointment or election in which judicial qualifications were drawn this narrowly, by people’s this or that political or ideological or religious belief — conservative, liberal, in-between, or loony fringes to either side: having nothing to do with one’s knowledge of the law or fairness or integrity, or any of that other competence claptrap: just fill out a partisan forced choice questionnaire, and otherwise be as stupid or incompetent as you want to be.  To heck with the laws as written by the only people empowered constitutionally to write them — i.e., legislators and Congress.  Belief is all that matters.

That’s what Alaska Right to Life Political Action Committee v. Feldman was driving at (and, lucky for us, got held off): judicial retention elections driven by conformity to political and ideological partisanship. In states where judges are elected to begin with, it’s often that way from the start, and judges and would-be judges have to  raise just as much cash for campaigining as politicians do — because judges have to become politicians themselves.  Do you really expect impartial interpretation of the law from a judge who is getting campaign donations from the very lawyers practicing before him?  (Did someone say lawyers have too much power in Alaska’s judicial selection system?  Just look at how much power lawyers-as-campaign-contributors already have in states where judges are elected.)

But I think Bopp and his collaborators have raised the stakes a notch with Miller v. Carpeneti. Here they’re not just trying to politicize our retention elections.  Here they’re trying out a novel new legal theory in a first step toward trying to throw our merit-based system of judicial selection out altogether — even perhaps, if they can, establish a precedent whereby other state’s merit-based systems can also be dismantled.

A nasty specter, that.  This is what the plaintiffs are asking for.  Whatever their immediate motivations may be, whether they’ve thought it through or not, this underlies it all, this is what they’ve lent themselves to.

Ken Jacobus, local counsel for the plaintiffs:

“These are all conservatives, but that doesn’t mean they come at it for the same reasons,” he says. “My own view is straightforward. The attorneys have too much say (in selecting judges) and that’s right up front. There’s nothing behind it.”⁴

The Alaska Constitution has built into it the means by which to amend it.  If you feel the attorneys (you being one yourself, Mr. Jacobus) have too much say: there’s your proper path: two-thirds vote of each house of the Alaska Legislature, followed by a majority vote in a general election; or a new constitutional convention.

What, too hard?  Then maybe its not the will of the Alaska people to change what ain’t broke.  I guess that’s why you’re trying to make an end run around us, into a federal court.

References

1. 8/29/09. “Miller v. Carpeneti: Where was the press?” by Melissa S. Green (Henkimaa).
2. 8/28/09. “Our view: Judicial activism — Lawsuit seeks to change Alaska’s Constitution” [editorial] (Anchorage Daily News).
3. 8/28/09. “Judicial wrangling: Nomination lawsuit seems chancy but understandable” [editorial] (Fairbanks Daily News-Miner).
4. 9/2/09. “Battle for the bench – Why do conservatives want to change the way Alaska picks its judges?” by Scott Christiansen (Anchorage Press).
5. 8/27/09. “Lawsuit asks feds to overrule Alaska Constitution” by Melissa S. Green (Henkimaa).
6. 7/28/09. [Document 32]. First Amended Verified Complaint for Declaratory and Injunctive Relief (42 U.S.C. § 1983). Miller replaces Hinger as first-named plaintiff, prompting change of case name to Miller v. Carpeneti.
7. 3/4/09. “Palin bucks pressure in Supreme Court appointment — SCRUTINY: Selection went against push from Alaska Family Council” by Lisa Demer (Anchorage Daily News).
8. 12/18/1995. “Application for Judicial Appointment: Palmer Superior Court” by Eric Booth Smith (Alaska Judicial Council).
9. Alaska Judicial Council Bylaws, Article I.
10. 10/3/05; amended 6/30/07. “Procedures for Nominating Judicial Candidates” (Alaska Judicial Council).
11. “A Look at Judicial Selection in Alaska” by Antonia Moras. Alaska Justice Forum 21(3): 1, 7-9 (Fall 2004).
12. “Judicial Selection in the U.S.” Alaska Justice Forum 21(3): 10-12 (Fall 2004).
13. “Selecting and Evaluating Alaska’s Judges: 1984–2007″ by Teresa White Carns. Alaska Justice Forum 25(4): 8–10 (Winter 2009).
14. Senator Mike Miller. Alaska State Legislature (former official website for House and Senate Legislative Majorities).
15. 12/08. “Silence at a Price? Judicial Questionnaires and the Independence of Alaska’s Judiciary” by Kelly Taylor. 24 Alaska Law Review 303.
16. 11/06. “The Big Bopper: This Terre Haute Lawyer Is Exploding the Canons of Judicial Campaign Ethics” by Terry Carter (ABA Journal).

Related posts:

1. Miller v. Carpeneti: Case dismissed
2. Miller v. Carpeneti: Judge Sedwick's opinion
3. Miller v. Carpeneti: Where was the press?

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?

PRESS RELEASE
Thursday, July 2, 2009
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

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, www.jamesmadisoncenter.org, 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

• 7/2/09. Verified Complaint for Declaratory and Injunctive Relief (42 U.S.C. § 1983).  First version of complaint, with Hinger as first-named plaintiff; hence initial reference to case as Hinger v. Carpeneti.  I’d recommend reading the revised complaint dated 7/28/09 rather than this one.
• 7/2/09. Motion for Preliminary Injunction and Memorandum in Support. Read this too: this is the injunction that oral arguments will be heard upon on September 11.
• 7/2/09. Motion for Preliminary Injunction and Memorandum in Support: signature and sample order. This is excerpted from a second copy of the motion from another source, showing the signature of Kenneth Jacobus followed by an attachment with a suggested wording for the order for preliminary injunction.
• 7/15/09. [Document 29]. Response to Motion for Extension of Time to Oppose Plaintiffs’ Motion for Prelminary Injunction. Agreeing to the defense request for additional time prepare its responses.
• 7/28/09. [Document 32]. First Amended Verified Complaint for Declaratory and Injunctive Relief (42 U.S.C. § 1983). Miller replaces Hinger as first-named plaintiff, prompting change of case name to Miller v. Carpeneti.

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

• 7/31/09. [Document 36]. Defendants’ Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6). This is just the motion; the arguments are in the next file.
• 7/31/09. [Document 35]. Defendants’ Memorandum in Support of Motion to Dismiss. The Alaska Judicial Council is being defended by Assistant Attorney General Margaret Paton-Walsh of the Alaska Department of Law and Jeffrey Feldman, Susan Orlansky, and Alexander O. Bryner of the law firm Feldman Orlansky & Sanders. Here’s their arguments for why this lawsuit should be dismissed.
• 7/31/09. [Document 34]. Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction. Why the motion for a preliminary injunction should be denied.

Plaintiffs: Response to defendants

• 8/5/09. [Document 38]. Reply to Defendants’ Opposition to Motion for Preliminary Injunction.
• 8/17/09. [Document 42]. Plaintiffs’ Opposition to Defendants’ Motion to Dismiss Pursuant to F.R.C.P. 12(b)(g).

Defendants: Reply

• 8/27/09. [Document 43]. Defendants’ Reply to Opposition to Motion to Dismiss.

References

1. 8/27/09. “Lawsuit asks feds to overrule Alaska Constitution” by Melissa S. Green (Henkimaa.com).
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 Henkimaa.com). 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.

Related posts:

1. Miller v. Carpeneti: Judge Sedwick's opinion
2. Miller v. Carpeneti: Case dismissed
3. Miller v. Carpeneti: The conservatives behind the attack on Alaska judicial independence and impartiality

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 officio — she 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.

References

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).

Related posts:

1. Miller v. Carpeneti: Case dismissed
2. Miller v. Carpeneti: Where was the press?
3. Miller v. Carpeneti: Judge Sedwick's opinion

This is the full PDF that was provided to Steve, which included Mr. Ross’ response to the creation of an ad hoc group called Lawyers Against Discrimination chaired by John Suddock. The group was formed to attempt to prevent repeal of an ordinance, which had recently passed in the Anchorage Assembly, that prohibited the Municipality of Anchorage and municipal contractors from employment discrimination on the basis of “sexual preference.”  It was a big messy battle in Anchorage in late 1992/early 1993 in Anchorage. The ordinance was ultimately repealed. Discrimination on the basis of sexual orientation (or preference) remains legal in Anchorage, as in the rest of the state.

The attached Acrobat .pdf document is page 7 of the May-June 1993 of the Alaska Bar Rag, a publication of the Alaska Bar Association.  The content under the general heading of Anchorage debates gay rights ordinance includes:

• John Suddock’s announcement of the formation of Lawyers Against Discrimination;
• Wayne Anthony Ross’ responding letter (which starts with Mr. Ross sneering at the group’s acronym LAD), written on March 19, 1993; and
• a response to Mr. Ross’ letter by Jeffrey M. Feldman, a member of the group.

A portion of the page including only Mr. Ross’ letter was posted earlier today at Progressive Alaska; a commenter there asked someone for a PDF of the entire page including Mr. Feldman’s response — that’s what I’m responding to with this post.  (I saw a copy earlier at the Fairbanks Daily News-Miner, I think, but I can’t find it right now, so I’m just doing it  myself).

Please note that the page is wider than letter-size, so if you want to print it out, you’ll need to adjust your printer somehow.

Alaska Bar Rag, May-June 1993, page 7

Bent Alaska has posted a transcription of Mr. Ross’ letter (though not John Suddock’s or Jeffrey Feldman’s stuff, so read it in the PDF). Here’s what Mr. Ross had to say:

Dear LAD: (LAD??? Intentional, on your part? Or merely a Freudian slip?)

I received your letter of 23 February 1993 regarding the Anchorage homosexual rights ordinance. While I am not surprised to see some of the names on your letterhead, I am most disappointed in other names thereon. I had more respect for some of you than I do now.

I am in favor of repeal of the measure. I see nothing involving civil rights in this matter. We all, heterosexual or homosexual, have certain rights. This bill seems to give extra rights to a group whose lifestyle was a crime only a few years ago, and whose beliefs are certainly immoral in the eyes of anyone with some semblance of intelligence and moral character.

It is a shame that you folks don’t have some causes you could become involved in that are of benefit to society in general. Instead, you support degenerates. No wonder the legal profession is treated with less respect than we wish.

If, as you apparently believe, morality is not based on long-standing God-given and God-instilled principles, but is something that changes from time to time based on public perception of right and wrong, then that is even more reason for you to allow this referendum to go to a vote of the people. After all, isn’t it your position that public morality is based upon whatever the public decides?

None of you has done anything publicly (to my knowledge) to attempt to protect the millions of lives of innocent children killed each year through abortion, yet you collectively contribute $5,000 to the cause of sexual perversion. It is quite disheartening to me to see my fellow members of our honorable profession display such a lack of proper priorities.

Wayne Anthony Ross

Nowadays, instead of being immoral, degenerates, and alleged practitioners of sexual perversion, we’re just… well… lima beans. Which Wayne Anthony Ross hates.

Related posts:

1. Against discrimination in Anchorage
2. Alaska newspaper editorials against WAR
3. Pro-WAR = anti-LAW