Friday, October 1, 2010
Ninth Circuit Rejects Challenge to Alaska Judge Selection Process
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday threw out a challenge to the power Alaska lawyers hold under the state’s “merit selection system” for appointing judges.
A group of Alaska voters contended that the system under which the governor appoints judges from a list of nominees selected by a seven-member merit selection commission, which includes three members appointed by the Alaska Bar Association, violated their right to equal protection.
But a federal district court judge in Anchorage rejected that argument, and a three-judge panel of the Ninth Circuit concluded that there is no constitutional requirement that all participants in the judicial selection process be popularly elected or appointed by a popularly-elected official.
Alaska has used a merit selection process to select judges since statehood in 1959. The system, which was adopted at a 1955 constitutional convention, is based on the “Missouri Plan” developed in the 1940s when Missouri voters discarded their system of electing judges. The plan has been adopted to varying degrees by 33 states and Washington, D.C.
Alaska law requires that all judges be attorneys, and the state’s constitution and statutes provide that the merit selection commission, known formally as the Alaska Judicial Council, is to screen applicants for judicial positions and forward to the governor a list of the most qualified.
The council is chaired by the chief justice of the Alaska Supreme Court, and composed of three lay members appointed by the governor and confirmed by the Legislature, and three attorney members appointed by the Board of Governors of the Alaska Bar Association.
The board is the association’s governing body and is elected by the association’s members. Membership in the association is mandatory for all lawyers practicing in Alaska.
A judicial applicant must receive the vote of at least four members of the council to be placed on the nomination list, which must contain at least two nominees per position, and the governor’s choice for an appointment is confined to the names on the list. An appointed judge is then subject to a nonpartisan retention election.
Anchorage attorney Kenneth Kirk, a former and potential judicial applicant, filed suit in 2009 in the U.S. District Court for the District of Alaska challenging the merit selection system after Alaska Supreme Court Justice Robert L. Eastaugh announced his anticipated retirement. Joined by Carl Anders Ekstrom, a non-attorney member of the Board of Governors, and Michael Miller, Kirk sought to enjoin the three attorney members of the council from deliberating or voting on nominees to fill the vacancy.
The plaintiffs also sought an injunction against the requirement that a nominee obtain four votes from the council.
The defendants, Chief Justice Walter Carpeneti of the Alaska Supreme Court and the other council members, moved to dismiss on the basis that the merit selection system did not violate equal protection. U.S. District Judge John W. Sedwick agreed, concluding that vote denial cases did not invalidate the selection of the members of the Judicial Council.
On appeal, the plaintiffs argued that all participants in Alaska’s judicial selection process must either be elected themselves or appointed by a popularly elected official. They pointed to a footnote in the U.S. Supreme Court’s 1969 decision in an election case, Kramer v. Union Free Sch. Dist. No. 15 395 U.S. 621, briefly mentioning the concept of voters’ “indirect influence” over appointments by virtue of voting for the appointing official.
But Judge Mary M. Schroeder rebuffed the argument, explaining:
“Kramer illustrated how voters could indirectly influence school board appointments as part of its explanation of why New York’s exclusion of certain voters in school board elections was unconstitutional. The Court did not suggest a sweeping new constitutional rule that appointments for all positions in every branch of government must be made by an official who is popularly elected.”
Judges Diarmuid F. O’Scannlain and Richard R. Clifton joined Schroeder in her opinion.
The case is Kirk v. Carpeneti, 09-35860.
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