Dunleavy's refusal to appoint judge violates Alaska Constitution, state law
Gov. Mike Dunleavy’s refusal to name a Palmer judge violates the Alaska Constitution and state law.
Article IV of the Alaska Constitution makes his role in selecting judges clear: “The governor shall fill any vacancy in an office of supreme court justice or superior court judge by appointing one of two or more persons nominated by the judicial council.”
Contrary to a requirement in the Constitution, Dunleavy says he won’t pick a judge from the names given him by the Alaska Judicial Council. Contrary to a requirement in state law, he has failed to make a pick in the required 45-day window.
The Republican Party mouthpiece excuses Dunleavy by saying he doesn’t want to be “boxed in” by the council. In fact he is boxed in by the Constitution.
Alaska Chief Justice Joel Bolger said Friday that Dunleavy does not appear to understand the constitutional mandate and “The governor must appoint one of the candidates nominated by the council.”
The judicial council submitted three names for two Superior Court vacancies in Palmer—Anchorage assistant district attorney John Cagle; Anchorage lawyer Christina Rankin; Palmer lawyer Kristen Stohler.
Dunleavy said “qualified candidates” were “inexplicably” not nominated by the Alaska Judicial Council, and he wants more names. He is overstepping his authority to make that demand.
Dunleavy selected Cagle for one Palmer position and refused to name Rankin or Stohler. He prefers someone else for the job, possibly attorney Peter Ramgren, nominated by the council for a district court position in Anchorage.
Cagle and Rankin had the highest rankings in the survey of members of the Alaska bar with direct professional experience, followed by Ramgren and Stohler.
The Alaska system of selecting judges, spelled out in the Constitution, is designed to limit political interference in the judiciary, a constitutional mandate that almost every Alaska governor has accepted.
In a recent law review article on the history of the judicial selection process in Alaska, former Supreme Court Justice Walter Carpeneti and lawyer Brett Frazer, said the rules are all part of preserving independence.
They quoted delegate Edward Davis, who said: “I believe I could say that all of us here want an independent judiciary, a judiciary that will not be swayed by the public will at any particular moment, a judiciary that will not be subject to political pressure, a judiciary that will not be subject to pressure from the executive branch of the government.”
Carpeneti and Frazer said that “attempts to replace merit selection with different, more politicized, systems for selection of judges have periodically been made.”
The Dunleavy example is the latest attempt.
Here is the conclusion from the study by Carpeneti and Frazer:
“The delegates to Alaska’s Constitutional Convention understood well the tension between an independent judiciary and popular sovereignty. The delegates sought to balance these tensions by creating the Judicial Council, evenly divided between attorneys, who would know well the abilities of their fellow attorneys, and lay members, who would represent the broader public, to find the best qualified candidates to nominate for appointment.
“The delegates then provided for the choice among the best qualified to be made by the governor, recognizing that elections have consequences. Finally, the delegates provided for the people to have the final say, after a suitable period on the bench for the new judge to develop a record. The delegates above all wished to assure that the new state would have a judiciary that was independent of the other branches of government, that would render fair decisions based on the law, and that would be free of political influences and considerations.
“Article IV has survived challenges both in court and in the legislature. And, as the Alaska Constitution begins its seventh decade, merit selection has been widely recognized as the best vehicle to assure the continued excellence of the Alaska judicial system.”