Governor Dunleavy, as required by the Alaska Constitution, took an oath of office, swearing that he did “solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of Alaska, and that I will faithfully discharge my duties as Governor of the State of Alaska to the best of my ability.”
Less than four months into his governorship, Dunleavy has violated that oath.
That same Alaska Constitution describes how Alaska selects its judges. The Constitution provides for a Judicial Council that screens applicants, and then sends two or more nominees to the Governor. The Governor picks from – and only from – the nominees forwarded by the Judicial Council. The idea was to keep politics out of the judicial selection process, and then have the appointee stand for approval election three years after appointment.1 This governor, and any governor, have no role in selection of names except to pick from the candidates the Judicial Council sends up. The goal of keeping the politics out of it is underlined by the fact that Judicial Council members serve six-year terms, and only half of them are selected by the Governor.
The thing about the process is that it works. Alaska has enjoyed a competent, politically neutral, and corruption-free judiciary. You can trust WC about this: WC attended law school in Chicago and got to watch judicial corruption first-hand.
There were two vacancies in the Superior Court for the Third Judicial District at Palmer, Alaska. The Judicial Council did its job, soliciting applications, interviewed and screened the applications received, and on February 4 sent three names to Governor Dunleavy: assistant Anchorage District Attorney John Cagle, Anchorage private-practice attorney Christina Rankin and Palmer private-practice attorney Kristen Stohler as finalists for two vacancies.2
Governor Dunleavy, by statute, had 45 days, or until March 21, to choose from the three Judicial Council nominees attorneys to fill the two Palmer judgeships. He filled one on March 20.
He failed to do so.
Instead of doing his job, instead of appointing the other judge from the Judicial Council’s nominees, instead of performing the duties imposed upon by duly enacted law, he wrote a whiny letter to the Judicial Council. In it, he states,
After reviewing the list of nominated and non-nominated candidates, I believe there are qualified candidates that the Council inexplicably did not nominate for this position. In addition, you declined to nominate, for the Palmer Superior Court, a candidate that you previously nominated for the Anchorage Superior Court and have currently nominated for the Anchorage District Court.
Ignoring the wanton cruelty to the common comma in Dunleavy’s letter, Dunleavy is complaining that his horse – the candidate he prefers for Palmer – didn’t get nominated. WC has examined the Alaska Constitution and Alaska law with some care and can find nothing that says an Alaska governor gets to decide what names get nominated. In fact, it’s completely clear that Governor Dunleavy has absolutely no role in the judicial nomination process. The Judicial Council doesn’t get to propose a budget; the Governor doesn’t get to nominate candidates for the bench.
The Governor doesn’t like the current Judicial Council? Tough toenails, Dunleavy. The Governor doesn’t like the candidates the Judicial Council sent up? More touch toenails, Dunleavy. It turns out that there were times the former Governors Wally Hickel and Frank Murkowski didn’t like the nominees presented, and groused about it, but nonetheless did their constitutional duty. They respect the Alaska Constitution, the law and their oaths.
Dunleavy? Not so much.
No doubt someone will bring a lawsuit, and some poor Assistant Attorney General will be tasked with defending Dunleavy’s oath breaking. Or perhaps the Koch brothers will hire someone to represent their problem child. It doesn’t matter. WC predicts Dunleavy will lose. Because the Alaskans who wrote the Constitution were a lot smarter than Governor Michael Dunleavy.
Although that’s damning with faint praise.
PS. WC inadvertently omitted an important source in writing this blog post. The Alaska Bar Review, in its December 2018 issue, published a lengthy history and analysis of Alaska’s judicial appointment process. If you are interested in the history of judicial selection in Alaska, it’s worth a read.
- The judicial appointment process, sometimes called the “Missouri Plan,” had overwhelming support from the constitutional convention delegates. Article III, the Judiciary was approved by a vote of 46-6. The portions of the Article dealing with selection process was approved by a vote of 51-2. See Vic Fischer’s superb Alaska Constitutional Convention, pp. 113-116. ↩
- Disclaimer: Christina Rankin is an attorney at Guess & Rudd P.C., WC’s law firm, and until WC’s semi-retirement, his co-shareholder in that firm. So WC has an apparent conflict of interest. Except for two things: (1) WC doesn’t want Christina to be a judge; he wants her to stay on a shareholder in the law firm; and (2) this blog post has nothing to do with who Dunleavy selects but only with his constitutional duty to pick from the candidates presented to him. ↩