Judges refuses to halt Troopergate investigation

SUBPONENAS: Attorney general's challenge is also quashed.

October 3, 2008 

An Anchorage judge Thursday refused to halt the Legislature's investigation of Gov. Sarah Palin and denied the Alaska attorney general's challenge of legislative subpoenas.

Superior Court Judge Peter Michalski heard arguments from both sides Thursday morning and issued a written ruling just before 5 p.m.

"I think it's great. It's a big day for the Constitution of the state of Alaska," said Peter Maassen, the lawyer representing the Legislative Council, which ordered the investigation.

The Texas-based Liberty Legal Institute, which helped represent the five Alaska Republican legislators who sued to stop the investigation, said that it planned to appeal to the Alaska Supreme Court. Any appeal would have to be fast.

That's because the investigator hired by the Legislative Council, Steve Branchflower, is to present his report in a week. Branchflower is looking into Palin's dismissal of her public safety commissioner, Walt Monegan, and whether she improperly pressured him to fire a state trooper divorced from her sister. There's intense national interest in the outcome now that Palin is the Republican nominee for vice president.

The Liberty Legal Institute said Thursday's ruling is a dangerous decision and declared that "Judge Michalski is the same judge who ruled in 1998 that same-sex marriage is a fundamental right, a decision subsequently overruled by a constitutional amendment approved by the voters of Alaska."

Liberty is the legal arm of the Free Market Foundation, which is associated with evangelical leader James Dobson's Focus on the Family, and lists its guiding principles as limited government and promotion of Judeo-Christian values.

Alaska Attorney General Talis Colberg said he didn't know whether he would appeal Thursday's ruling or if he will now advise subpoenaed state officials to cooperate with the investigation. He said he needed to consult with them.

"I'm going to talk to the clients before I talk to you," said Colberg, a Palin appointee.

The courts combined into a single case Colberg's attempt to quash the subpoenas and the Liberty Legal lawsuit to stop the investigation. Michalski dismissed the case, saying much of the argument against the investigation is not for the courts to decide, but is rather "business to be left to the legislative branch."


Nearly a dozen state officials and the governor's husband, Todd, have refused to honor subpoenas ordering them to testify in the Legislature's investigation of what's become known as Troopergate. They face the threat of possible jail time.

Thomas Van Flein, the Anchorage attorney representing both Todd and Sarah Palin, watched the court hearing Thursday morning. He said in an interview immediately afterward that if the judge refused to throw out the subpoenas, he would expect Todd Palin to testify after all.

"Short of appeal to the Alaska Supreme Court, which no one has talked about, I don't see why we wouldn't just have Todd testify," Van Flein said after the hearing.

Van Flein couldn't be reached Thursday night after the judge's ruling.

Anchorage Democratic Sen. Hollis French, who is overseeing the investigation, said he would let the investigator, Branchflower, decide how to deal with potential testimony from anyone who defied subpoenas but now wants to cooperate.

The governor initially said she'd cooperate with the Legislature's investigation but changed course after her nomination as vice president, saying it's politicized and that the state Personnel Board has jurisdiction over whether she did anything wrong. The McCain-Palin campaign said the Palins are cooperating in the Personnel Board investigation, but it is out of public view and might not be done before the Nov. 4 election.


Thursday's hearing in a small courtroom downtown was packed with reporters from around the nation as well as state legislators and local lawyers fascinated by the case.

Kevin Clarkson, arguing on behalf of the five Republican state legislators who sued to stop the investigation, argued Alaska's Constitution is unique in that it guarantees "fair and just" treatment of people who are under investigation by the Legislature.

"The manner in which the investigation is being conducted, the individuals by whom it is being conducted and the timing within which it is being conducted, violates the fundamental affirmative individual constitutional right to fair and just treatment," he said.

The bipartisan Legislative Council voted unanimously in late July to order the investigation. But Clarkson argued the Democratic lawmakers leading the effort have shown, through actions and statements to the press, that they openly support Democratic presidential nominee Barack Obama and Monegan, the public safety commissioner Palin dismissed in July. He also pointed to statements by French, who is overseeing the investigation, that impeachment is a possibility and that Palin could face a damaging "October Surprise" from the Branchflower report.

Judge Michalski wrote in his ruling that "the idea of fairness is an ambiguous and subjective concept."

"The court finds the conduct of Senator French, Senator Elton and investigator Branchflower do not rise to the level of a violation of any individuals' right to fairness. Fairness within a legislative context is different than fairness within a judicial context. It is expected that legislators will belong to some party and will support the positions of their party, often publicly," the judge wrote.

The judge also dismissed arguments that the Legislative Council and the Senate Judiciary Committee overstepped their authority in investigating and issuing the subpoenas.

The legislators who sued their colleagues are Wes Keller, Mike Kelly, Fred Dyson, Tom Wagoner and Bob Lynn. Dyson said he was "appalled" by the ruling.

Find Sean Cockerham online at adn.com/contact/scockerham or call him at 257-4344. Daily News reporter Kyle Hopkins contributed to this story.

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