Lawsuit challenges Alaska judicial nomination process

The lawsuit seeks an injunction stopping the Alaska Judicial Council from forwarding names to fill an upcoming vacancy on the Alaska Supreme Court. Justice Robert Eastaugh announced he will retire Nov. 2. The council took applications until May 28.

The lawsuit by Alaskans Michael Miller, Kenneth Kirk and Carl Ekstrom challenges the state constitution, which specifies that the governing body of the Alaska Bar Association will name three of the seven members of the Alaska Judicial Council. The council forwards names of judicial nominees to the governor. The governor must pick from the council's list.

That's too much power in the hands of one group at the expense of all Alaskans, said James Bopp Jr., lead attorney for the plaintiffs.

"The key point here as far as the constitutional issue is concerned is the equal right to vote," he said. "There's no justification for lawyers to have some privileged position in selecting members of the judiciary."

For anyone wanting fair and impartial judges, the last people who should be put on a nominating commission are representatives of the bar association, he said.

"The trial lawyers' bread and butter depends on liberal rulings on personal injury cases," Bopp said. "They have a direct financial interest in who is a judge. And if they are able to elect their fellow trial lawyers to the commission, they've got a really privileged position and ability to line their own pockets."

The seven members of the Judicial Council are named as defendants. Their attorneys say the argument advanced in the lawsuit has been rejected by federal courts in Indiana and Missouri.

The Alaska system was adopted after extensive debate at the constitutional convention in 1955-56, and lawyers for the state defended the status quo.

"The composition of the Judicial Council is designed to ensure that qualified judicial candidates are nominated for appointment by the Governor; attorneys are given a significant role because they bring professional expertise and knowledge of the candidates to the table," the state's attorneys wrote in an opposition motion to the request for an injunction.

Margaret Paton-Walsh, the assistant attorney general assigned to the case, said Wednesday the plaintiffs are trying to invalidate important provisions of the Alaska Constitution.

"Alaska's Constitution created a system of judicial selection designed to ensure that the most highly qualified candidates were appointed to the judiciary," she said in an e-mail response to questions. "This system was carefully designed by the framers of the Alaska Constitution and has served the State well for the last 50 years."

Bopp is listed as an attorney for the James Madison Center for Free Speech. He's a prominent anti-abortion attorney and defended Valley Hospital in Wasilla regarding whether it was required to offer abortions.

According to the lawsuit, filed last month, Kirk is an attorney who has been rejected for Superior Court vacancies and who would apply for the upcoming Supreme Court vacancy except for the current composition of the council. Ekstrom is one of three non-attorney members of the bar association's 12-member Board of Governors. His vote is diluted by the nine attorneys on the board, according to the lawsuit.

The lawsuit contends that Alaska's judicial selection process violates the Equal Protection Clause of the 14th Amendment of the U.S. Constitution by denying the plaintiffs the equal right to vote.

Nine other states have systems like Alaska's Bopp said. A fair system would have all members of the Judicial Council appointed by the governor or other elected officials, such as the Senate president or House speaker.

Bopp said Alaska court decisions on abortion cases were not a factor in filing the case. He claimed that a liberal, activist Supreme Court is an outgrowth of Alaska's judicial nomination process when the bar association has a privileged position to select judges.

A hearing on the injunction is set for Sept. 11.