Tag: Alaska

Alaska courts hit by cyberattack

Alaska’s court system was hit by a malware attack this week. The problem was caught quickly, which prevented significant damage. Nevertheless, certain public features on the court system’s website–including the ability to search court cases and view Zoom hearings–were temporarily taken offline.

The situation is reminiscent of the Solar Winds cyberattack that hit the federal courts earlier thisyear, as well as the ransomware attack that affected the Texas court system last May.

The lesson: whether you wear a robe, a suit, or elastic pants to work, give thanks to your IT Department today.

State courts come under legislative assault

State legislators are trying to politicize their judiciaries for short-term gain. Courts, their users, and the public must speak up to stop them.

The first weeks of the 2021 legislative session have seen an extraordinary number of proposals to overhaul the selection of judges or otherwise affect the composition of state judiciaries. Among them:

In Montana, Senate Bill 140 would eliminate the state’s judicial nominating commission, giving the governor direct appointment power over district court judges and state supreme court justices. The nominating commission, in place for nearly half a century, was expressly implemented to depoliticize the judicial appointment process. Despite an outpouring of criticism for the proposal, which is widely seen as a partisan gambit by new Governor Greg Gianforte and Republican legislators, the bill passed the legislature last week. If signed by the governor, the bill would make Montana a national outlier in its refusal to use an independent nominating commission.

In Alaska, a very similar bill would eliminate the role of the state’s nominating commission for the appointment of judges on the district courts and state court of appeals. Senate Bill 14 was introduced by Republican senator Mike Shower in late January. As in Montana, the bill has been panned as “a concerted strategy to dismantle Alaska’s system of selecting judges based on merit and replace it with a process that relies primarily on politics.” Alaska’s Chief Justice, Joel Bolger, similarly criticized the bill as undermining a well-established and respected judicial selection process. Continue reading “State courts come under legislative assault”

Alaska Chief Justice recuses himself in gubernatorial recall case

Alaska’s Chief Justice, Joel Bolger, has recused himself from a case involving the legality of a campaign to recall the state’s governor, Mike Dunleavy. Bolger made the decision in light of his previous statements criticizing the governor for failing to follow established procedures in appointing a district judge. Bolger also told audiences that Alaskans should resist “political influence” over the judiciary and should fight for judicial independence.

The Court invited interested parties to file motions seeking Bolger’s recusal, with a February 26 deadline. No motions were received, but Bolger determined on his own that recusal was appropriate. In a two-page Recusal Notice, he stated:

As stated previously, I do not have any personal bias or prejudice concerning the parties or attorneys involved in this case.  However, I have special public responsibilities as the administrative head of the Alaska Court System and as the chairman ex-officio of the Alaska Judicial Council.  In those capacities, I have made public statements that could suggest a strong disagreement with the governor’s conduct on some very fundamental issues affecting the judicial branch, conduct that forms part of the basis for the recall petition under consideration.  In other words, this is a case where a reasonable person might question whether my judgment is affected by my overriding public responsibilities to the justice system.

Earlier thoughts on Bolger’s comments, and the propriety of judges speaking out, here.

The Court will consider the legality of the recall on March 25, with retired Justice Robert Eastaugh filling in for Bolger. It is widely expected that the Court will uphold the validity of the recall effort.

When should judges speak out?

Justice Sonia Sotomayor drew attention last week when she filed a dissent in a case staying the issuance of a preliminary injunction against the federal government. The injunction had been issued by a federal district judge in Chicago, and barred the Trump Administration from implementing a “public charge” policy that would require immigrants seeking green cards to demonstrate that they would not need government assistance. Beyond disagreeing with the majority’s decision to overturn the injunction, Justice Sotomayor expressed dismay with her colleagues’ readiness to entertain “extraordinary” appeals from the Trump Administration, rather than letting those appeals first work their way through the intermediate appellate courts. She wrote:

[T]his Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. But make no mistake: Such a shift in the Court’s own behavior comes at a cost. Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the government.”) They demand extensive time and resources when the Court’s intervention may well be unnecessary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances—where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.

Perhaps unsurprisingly, the dissent drew vindictive attention from President Trump, who took time away from his visit to India to chastise Sotomayor and suggest that both she and Ruth Bader Ginsburg (who publicly criticized Trump in July 2016) recuse themselves from all future cases involving Trump or the Trump Administration. “I just don’t know how they cannot recuse themselves with anything having to do with Trump or Trump-related,” the President said.

The U.S. Supreme Court was not alone in facing scrutiny for the perceived political statements of judges. In Alaska, Chief Justice Joel Bolger has been drawn into a controversy surrounding an effort to recall the state’s governor, Mike Dunleavy. Proponents of the recall allege (among other things) that the governor showed lack of fitness for the office by refusing to appoint a trial judge within the 45-day period prescribed by statute, and by “improperly using the line-item veto to … attack the judiciary and the rule of law.” The legality of the recall was challenged in court, and the state supreme court will hear the case on March 25. But some are calling for Bolger to recuse himself from the recall decision, given that Bolger commented on the governor’s behavior at the time of the trial judge appointment controversy. (Bolger also criticized the line-term veto in a separate speech.) Bolger has declined to remove himself from the case of his own volition, but the supreme court did take the unusual step of issuing a letter inviting motions to disqualify if others felt it was warranted.

It is certainly true that judges must take care in their public pronouncements, especially as they relate to politics, public policy, or other government officials. Diving recklessly into partisan political debate is a time-honored recipe for eroding the legitimacy of the judicial branch. But it is also true that the judiciary is an independent branch of government, and should have a voice on issues that affect it as an institution. Where do we draw a sensible line?

Continue reading “When should judges speak out?”

Alaska governor backs down, will choose judge from existing slate of nominees

Last week, Alaska Governor Mike Dunleavy refused to appoint a state trial judge from the list of nominees provided to him by the Alaska Judicial Council, expressing concern that certain qualified applicants were “inexplicably” not included on the list. In response, Alaska Chief Justice Joel Bolger defended the existing selection process.

The governor and chief justice met to discuss the impasse earlier this week, and seem to have reached an understanding. Dunleavy has now agreed that he must choose a judge from the existing list of nominees. Publicly, the governor has pushed to broaden the list of nominees in the future, which is a perfectly sensible policy discussion to take up. In the meantime, it is good news that this particular kerfuffle has ended with minimal damage.

Alaska governor refuses to follow state’s judicial nominating procedures

Alaska’s constitution, like that of many western states, embraces a merit selection process for judges. An independent nominating commission (here, the Alaska Judicial Council) reviews the applications of judicial aspirants and selects a slate of names, which it forwards to the governor, who in turn must choose a candidate from the slate. The system has operated without incident for sixty years … until now.

Governor Mike Dunleavy, provided with a slate of nominees for the Palmer Superior Court, has refused to name anyone to the open seat on the court. The governor’s reasoning appears to be that there were other qualified candidates who “inexplicably” (in his view) were not included among the nominating committee’s choices.

The governor has 45 days under state law to choose from among the candidates provided by the commission. Forty-five days have now passed, and no one is sure what will happen next. The state’s chief justice has defended the sanctity of the current nominating process.

The governor seems to be plainly in the wrong here. Merit selection systems deliberately divide the power of judicial appointments among multiple actors to reduce the risks of patronage and political partisanship. The governor does not appear to argue that the candidates provided by the commission were unacceptable, only that there are others he would prefer. That is not his prerogative. He should fill the seats with a qualified nominee provided by the commission, and give the state courts the judicial staffing they deserve.

 

Native tribes in Alaska push for tribal courts

Several tribes native to Alaska are considering a push for their own tribal courts. One such court, for the Tlingit and Haida tribes, has been operating in Juneau since 2007.

The AP reports:

Marina Rose Anderson, the vice president and administrative assistant for the Organized Village of Kasaan, was among the officials who attended the conference. Issues that happen close to home should be handled close to home, Anderson said, rather than having people outside the community make legal decisions.

Her goal is to make the tribe as independent as possible, Anderson said.

Hoonah Indian Association Tribal Administrator Robert Starbard had similar thoughts.

“I think for us, the primary importance of a tribal court is that it gives additional legitimacy and eligibility to our sovereignty,” he said. “You cannot be sovereign if you cannot exercise control over what happens with your ordinances and laws. Tribal court is a mechanism that allows us to do that.”

Indeed.

Post-election judicial roundup

Many states had judges and issues affecting the judiciary on their ballots this week. Here are some of the more noteworthy outcomes from several western states:

In California, state supreme court Associate Justice Carol Corrigan was retained by voters by about a 2-1 margin. Corrigan had been the target of an anti-retention campaign by several LGBT groups, who took issue with her dissent in the state supreme court’s decision legalizing same-sex marriage in 2008. Happily, most voters (regardless of how they felt about that case) properly viewed that opinion in the context of hundreds that Justice Corrigan has issued over her judicial career.

In Alaska, Judge Michael Corey was not nearly as lucky. In a situation reminiscent of the mob that removed Judge Aaron Persky in California earlier this year, Judge Corey was targeted for non-retention by a group calling itself “No More Free Passes.” The group took issue with Judge Corey’s decision to approve a “no jail time” plea deal for a man accused of strangling a woman until she fell unconscious, and then masturbating on her. The problem for the prosecutors and for Judge Corey was that this sickening act does not qualify as a sex crime under Alaska law. Consistent with existing law, the district attorney proposed a plea deal that allowed the defendant to walk away without jail time, and Judge Corey approved it.

It’s not hard to see why this decision would raise anger about the state of the law, and mobilize people to change it. But instead, Judge Corey became the target, and “No More Free Passes” ran a successful social media campaign to prevent his retention. This despite his excellent performance review (which was issued before the plea deal was approved).

The leader of “No More Free Passes” admitted that its removal of Judge Corey was largely symbolic, and that its main focus was on changing the law. In a Facebook post, she stated that the group “will no longer be discussing Mr. Corey…. We wish him nothing but the best in his future.” That is cold comfort for an excellent judge whose only fault was following the law. Congratulations to “No More Free Passes” on destroying a judge’s career purely as an act of symbolism. I hope you sleep well at night.

In Colorado, voters narrowly defeated Amendment W, which would have streamlined the judicial retention ballot in future elections. A majority of voters supported the amendment, but “yes” votes did not meet the 55% supermajority threshold required for passage.

Out of more than 100 judges on the Colorado retention ballot, two were not retained by voters. Both judges had received poor performance evaluations from Colorado’s official JPE program.  Several other judges were targeted by anti-retention groups or individuals, but  had received strong performance evaluations and were comfortably retained by voters.

In New Mexico, which uses a mixed judicial selection system (judges must initially run for their seats in contested elections, and afterward face retention), voters radically overhauled the state court of appeals. Four new judges were elected–all women, and all Democrats–giving women eight of the ten seats on the court. Another court of appeals judge, Michael Vigil, left his seat to run for the state supreme court, and handily defeated incumbent Gary Clingman. Vigil’s seat will be filled by gubernatorial appointment. The only male judge left on the court, Judge J. Miles Hanisee, was retained by a comfortable margin.

New Mexico voters were also asked to “clear the bench” of judges by an anonymous group starting early this year. While the movement had little impact on the state’s appellate and district courts, four Metropolitan Court judges failed to reach the 57% threshold for retention. Of the four who were not retained, two were not recommended for retention by the state’s judicial performance evaluation commission. Two other judges who likewise were not recommended for retention just squeaked over the retention threshold, with 57.15% and 57.02% of the vote, respectively.

In Arizona, state supreme court Justice Clint Bollick was comfortably retained by voters despite an anti-retention effort funded by the National Education Association.

And in Texas, one of only two states that permits voters to simply vote a straight party ticket, a Democratic wave unseated nineteen incumbent Republican judges on the state’s  intermediate appellate courts. This party sweep (which is not uncommon in Texas) will lead to two related consequences for the appellate courts. First, a number of highly experienced judges are now out of a job. Second, the learning curve for the new judges will take time. I do not envy anyone with cases pending in those courts over the next several months, as an entirely new judiciary gets it feet wet.

UPDATE 11/16/18: The post has been revised to reflect the Colorado supermajority requirement for Amendment W.

 

Former Alaska Justice receives O’Connor Award for work on civics education

Retired Alaska Supreme Court Justice Dana Fabe has been awarded the 2017 Sandra Day O’Connor Award for the Advancement of Civics Education.  Justice Fabe worked on a series of projects to promote awareness of the courts in schools and among the general public.  The award, given by the National Center for State Courts, recognizes Justice O’Connor’s work in promoting civics awareness since her retirement from the Supreme Court in 2006.

I had the honor of meeting Justice Fabe once, and she is certainly a worthy recipient of this award.