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Attorney general says state will not challenge impartiality of chief justice on recall

  • Author: James Brooks
  • Updated: February 20
  • Published February 20

Alaska Chief Justice Joel Bolger delivers the annual State of the Judiciary address to the Alaska Legislature on Wednesday, Feb. 12, 2020 as Senate President Cathy Giessel, R-Anchorage, and Speaker of the House Bryce Edgmon, I-Dillingham, sit behind. (James Brooks / ADN)

JUNEAU — The state of Alaska will not challenge the impartiality of Alaska Chief Justice Joel Bolger in a case that will determine the legality of the recall campaign seeking to remove Gov. Mike Dunleavy from office.

The decision was made by Attorney General Kevin Clarkson, a senior Department of Law official said Thursday. Recall Dunleavy, the group pursuing the recall, said it also would not challenge Bolger’s decision to serve as one of five Alaska Supreme Court justices considering the case.

Earlier this week, a group backing Dunleavy said it was dropping its challenge to the legality of the recall. The group, Stand Tall With Mike, said its decision was in part due to a belief that Bolger cannot rule fairly. Bolger, the group said, was a “material witness” to an accusation that the governor failed to appoint a judge on a schedule required by state law and the constitution.

Stand Tall With Mike’s withdrawal from legal proceedings leaves Recall Dunleavy and the state as the only groups still involved in the matter, and after Stand Tall With Mike’s announcement, the Supreme Court invited both groups to challenge Bolger’s participation.

The Supreme Court case represents the climax of an extended legal fight. The state Division of Elections ruled the recall invalid last year. In January, a lower-court judge overturned that ruling. The lower-court decision has now been appealed to the state Supreme Court. Courtroom arguments have been scheduled for March 25, and the Supreme Court is expected to render a verdict on or soon after that date.

If the court rules the recall is legal, a special vote will take place if backers gather the signatures of at least 71,252 registered Alaska voters. The vote will be a straight up-or-down decision. If Dunleavy is removed, Lt. Gov. Kevin Meyer will become governor.

The lead attorney for the state is Margaret Paton-Walsh, a senior assistant attorney general with years of experience in high-profile cases. Last week, Paton-Walsh was among eight attorneys and judges who applied for a pending vacancy on the Alaska Supreme Court. In addition to serving as chief justice, Bolger is chair of the Alaska Judicial Council, a seven-member group that selects finalists for judicial vacancies.

The Department of Law and court system said that coincidence does not create a conflict of interest for either person.

“There is no conflict. Attorneys at the department routinely appear in front of the Alaska Supreme Court on behalf of the state, taking positions that have been vetted and approved through the department, while adhering to and upholding their ethical obligations as provided in the Professional Code of Conduct — just as judges have to adhere to the Judicial Code of Conduct,” said senior assistant attorney general Cori Mills, responding to an email sent to herself and Paton-Walsh.

Mara Rabinowitz, special projects coordinator for the Alaska Court System, said the chief justice votes on nominations only in event of a tie.

“It is not uncommon for attorneys appearing in cases before the Supreme Court to apply for judicial positions on the Supreme Court, the Superior Court, and the District Court,” she said.

Susanne DiPietro, executive director of the Judicial Council, said that in her experience, “the (chief justices) do not, or very very rarely, make a substantive comment during deliberations,” and the selection process is performed by the six other members of the council.

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