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Ninth Circuit Upholds Alaska’s Judicial Selection Process


Anchorage, Alaska – The constitutionality of Alaska’s system for appointment of Superior Court judges and Supreme Court justices has been upheld by the U.S. Court of Appeals for the Ninth Circuit.

Thursday’s ruling affirmed an earlier decision in the U.S. District Court for Alaska concerning the Judicial Council.

The council is a seven-member body established by the state Constitution, with three non-lawyers appointed by the governor and confirmed by the Legislature; three attorneys appointed by the Board of Governors of the Alaska Bar Association; and the chief justice of the Supreme Court, who is appointed by the governor. The council presents nominations for vacancies on Alaska’s courts to the governor, who must select from among those candidates in making appointments to the bench.

A lawsuit in 2009 argued that the Judicial Council violates the equal protection provisions of the 14th Amendment to the U.S. Constitution, because lawyers have more say in judicial nominations than Alaskans generally.  The plaintiffs asserted that equal protection requires that appointments to any government office should be made only by popularly elected officials and that the appointment of three council members by the Board of Governors failed this test.

The Ninth Circuit, citing U.S. Supreme Court precedents, ruled that the bar’s governing board is a “limited purpose entity” not subject to the “one man, one vote” principle because it does not administer a normal function of government and because the lawyers who elect board members are disproportionately affected by board decisions.

“In this case, the power vested in the Judicial Council is not to make the final appointment, but to nominate persons for judicial selection,” the judges wrote. “The ultimate power to appoint judges is in the governor, who is popularly elected by the people of Alaska. In addition, the people have the opportunity to reject the appointment in subsequent retention elections.”

Attorney General Dan Sullivan noted that the Judicial Council was extensively debated in 1955 at the state constitutional convention and that delegates voted overwhelmingly against elected judges and in favor of an independent commission to screen and recommend applicants, so as to safeguard the integrity of the process.

“This system has served us well ever since statehood. Alaska has a well-deserved reputation for outstanding professional and dedicated Superior Court judges and Supreme Court justices. It’s gratifying that the Ninth Circuit has rejected this challenge to Alaska’s Constitution.”

Sullivan thanked Department of Law attorneys Mags Paton-Walsh and Laura Bottger, and attorneys from Feldman, Orlansky & Sanders, who together defended the action on behalf of the Alaska Judicial Council.

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