Joe Miller and the law

Peers give him mixed marks; history challenges his views

September 8, 2010 

Joe Miller

SAM HARREL / FAIRBANKS DAILY NEWS-MINER VIA THE ASSOCIATED PRESS

During the Republican primary, Joe Miller stressed his military background. He also stressed his experience as a Yale-trained lawyer, a judge and a knowledgeable -- even expert -- interpreter of the Constitution, especially the Founders' original intent. Miller's emphasis on his legal career and Constitutional expertise is unusual in Alaska Senate campaigns. Only two of the seven men and women who have held Senate seats since statehood have been lawyers, Ted Stevens and Lisa Murkowski. Neither said much about their law degrees, their resumes as lawyers or the Constitution and the Founders.

Miller is more in the tradition of Joe Vogler, founder of the Alaskan Independence Party. Like Miller, Vogler grew up in Kansas, earned a law degree (although he never practiced in Alaska) and hurled rhetorical thunderbolts at the federal government from Fairbanks, his home. Unconstitutional was one of his favorite terms of derision -- along with posy sniffer, directed at environmentalists.

Vogler was a polarizing figure; so is Miller. While his admirers find him self-confident and goal-directed, his detractors, looking at the same man, begin their description of him with one word: arrogant.

FROM YALE TO ALASKA

The best single source of information about Miller's legal career is his application to become a Fairbanks Superior Court judge. He submitted the application to the Alaska Judicial Council Nov. 8, 2004. The date is noteworthy. On Nov. 2, 2004, Miller appeared on the general election ballot seeking a Fairbanks House seat. Less than a week later, he put forward his name for the judgeship. He was losing the election contest to incumbent Democrat David Guttenberg by 200 votes, he told the council.

"There is a remote chance that I could still be certified as the winner, depending on the outcome of absentee votes. It is my understanding that these additional ballots will be counted on or before August 14, 2004." If he won, he would withdraw the application, he explained. Miller obviously erred when citing the date of the ballot count -- Aug. 14, 2004, had passed. More importantly, it's fair to infer he had not only given up his battle with Guttenberg but his interest in a legislative career. You don't run for the Legislature from a Superior Court bench.

Miller didn't win the election but withdrew the application anyway -- on Jan. 12, 2005, according to Judicial Council records.

Miller entered Yale Law in September 1992 and had summer clerkships Outside before he came to Alaska as a clerk for Condon, Partnow and Sharrock of Anchorage in July 1994. In August 1994, he became an intern at the Department of Law where he worked on oil and gas litigation until January 1995 when he returned to Yale to finish his degree. Professor George Priest of Yale who supervised his Alaska internship, remembers him as an able, disciplined, ambitious student -- memorable because he was so different. "He turned in a 100 page paper on his Alaska work," Priest recalled, significantly longer than others who submitted independent study papers. "He made it clear he wasn't like other Yale students who want to go to Wall Street and get rich. He was going to Alaska."

From May 1995 until March 1998, Miller was an associate with Condon Partnow and Sharrock. He left to become the state magistrate in Tok, a $58,000 a year full-time position. He was making, by his estimate, $70,000 with Condon. How was his departure received by his colleagues at the firm? "I can tell you" says David Shoup who supervised him, "when he said he was going, nobody said please don't."

In April 2002, Miller became an acting District Court judge in Fairbanks, a $91,000 a year interim position that lasted five months. In 2002 he also became the federal magistrate in Fairbanks, a part-time job of 10 hours a week that paid him about $33,000 a year. He was a federal magistrate for two years, apparently supplementing his income as a part-time attorney with the Fairbanks North Star Borough. The pay was $35,000 a year. (The salary figures are from his application for borough employment. Clearly his income was modest, definitely not what a Yale lawyer makes on Wall Street.)

He resigned as the federal magistrate when he ran against Representative Guttenberg in 2004. He's now in private practice and seems to be a generalist. He does a significant amount of domestic relations work, according to Rita Allee of Fairbanks who has appeared opposite him many times. "He seems to me very restless, always on the move -- doesn't hold jobs for long. He needs to settle down and learn more about his craft as a lawyer. At the same time, I have to say he's likeable, very likeable."

PEER REVIEW

Here's what several lawyers willing to go on the record told me about Joe Miller lawyer, magistrate and judge.

• Nelson Traverso of Fairbanks says that when he appeared before Miller the federal magistrate was "An excellent representative of the court."

• Cliff Groh of Anchorage said by e-mail. "I worked with Joe Miller from February through late May of 2007 on administrative proceedings and litigation involving the property tax on TAPS. I was a contract attorney for a law firm representing the City of Valdez, and he was a part-time Assistant Borough Attorney for the Fairbanks North Star Borough. I found Joe Miller to be unusually intelligent and hard working, and he was an aggressive and effective lawyer for his client." Groh added in a conversation "My differences with him -- there are many -- are over matters of political philosophy."

• Paul Eaglin of Fairbanks who represented William E. Fisher, a disabled combat veteran, in a Social Security appeal that began in 2003 maintains "Joe Miller was assigned to review this appeal for Judge Ralph Beistline. His review -- which denied my client benefits -- was but a few pages and misunderstood the law and misstated the facts. I objected, and Judge Beistline asked Magistrate Harry Branson to review the case -- Miller was leaving to run for the Legislature. Based on Branson's careful review, Beistline ruled in my client's favor -- a decision that guaranteed a deserving veteran financial and health care benefits and in certain circumstances his dependents as well. If Miller's sloppy analysis had prevailed, Mr. Fisher would have received nothing."

MILLER AND THE CONSTITUTION

Miller's constitutional beliefs are prominent in his argument that federal spending should be reduced -- and Alaska should participate in the cuts once federal lands are returned to the state for development so we can pay our own way.

There is no "good constitutional basis" for the federal government owning two-thirds of Alaska, Miller told CBS' Bob Schiefer on "Face the Nation."

Miller is wrong about this; no competent historian would agree with him.

The question of federal ownership of lands in states and territories is old and was settled early in the history of the Republic. The facts are spelled out in the late Paul Gates' magisterial "History of Public Land Law Development" published in 1968.

As the United States expanded in the early 1800s, significant questions of land law and federal-state ownership arose. The creation of the state of Ohio, the disposition of the Louisiana Purchase, and the resolution of claims to western lands by some of the original 13 colonies/states established the federal government's right to own lands within states. In new states there were lawmakers who shared Miller's attitude toward federal land ownership -- they lost their argument with Uncle Sam.

Miller's suggestion that federal ownership of Alaska land is "probably unconstitutional" won't move judges. Wally Hickel filed a so-called "compact" suit claiming the federal government violated its statehood agreement with Alaska and thus Alaska deserved compensation. The suit went nowhere. Nevertheless, there's always an audience for Miller's contention in coffee shops where old-timers gather to denounce big government. "Probably unconstitutional" should win the Vogler vote.

Professor Gates concludes his discussion of the evolution of the statehood process and the battle over state-federal land ownership as follows: "The fact that Congress was supreme in the management of its lands and that 'sovereign states' could not assume control over them nor tax them either before or for a time after they were sold, was a clear indication of where true sovereignty lay, despite the views of some sophists of the time."

NOT EVEN FOUNDERS AGREED

In an Associated Press story, Miller said he finally made his decision to run on April 19 -- the anniversary of the battles of Lexington and Concord. And on other occasions he has wrapped himself in the Founders' mantle, especially the Constitution.

Miller tries to fix the Constitution and the Founders in stone, what they said true then, true now, true forever. But the authors of the Constitution realized they could not be the last word on every future subject. That's why we have the amendment process.

Soon after the Founders signed the Constitution, they began feuding over the reach of the federal government. James Madison was horrified by the presidential powers Alexander Hamilton took for granted, and thanks to the ambiguities of the Constitution, the founders fell out when defining federalism, taxation powers and states' rights, says Michael Kammen, like Paul Gates a Cornell history professor.

Kammen also points out that some of the Founders not only disagreed with their peers, they took differing positions on Constitutional questions at different points in their lives. "James Madison, for instance, sounded like a nationalist in 1787-88, an advocate of states' rights in 1798-99, and like a divided soul during the last dozen of years of his life, 1825-1836."

Miller says "We just simply want to get back to basics, restore essentially the constitutional foundation of the country, and that means the federal government becoming less onerous. ..." But some of the Founders -- the men who wrote the Constitution -- thought the federal government was too onerous when it was but an infant in the 1790s.

Americans have had conflicting opinions about the Constitution almost since the ink dried.

Voters have their reasons for voting for or against a candidate. A few Alaskans will never support a lawyer. But most of us want to know what a candidate has done professionally -- lawyer or no -- and what he says about big questions affecting our state -- like the role of the federal government.

Joe Miller has treated the Constitution as his personal property during this campaign. But nobody owns the Constitution, not even a graduate of one of the nation's most prestigious institutions, Yale Law.


Michael Carey is the former editorial page editor of the Anchorage Daily News. He can be reached at mcarey@adn.com.

Anchorage Daily News is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service