Miller v. Carpeneti: The conservatives behind the attack on Alaska judicial independence and impartiality

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).