Alaska Chief Justice Bolger has a lesson on the Alaska Constitution, judicial appointments for Gov. Dunleavy

This story has been updated.

Gov. Michael J. Dunleavy ignored the Alaska Constitution last week when he failed to fill a vacancy in the Palmer superior court by the deadline, refusing to consider two attorneys put forward by the independent, nonpartisan Alaska Judicial Council.

What happens next is unknown as no governor has ever blown past the 45-day statutory deadline without making an appointment. The council reportedly plans to meet Thursday to consider its next steps.

In the meantime, though, Alaska Chief Justice Joel Bolger prepared a lesson on the Alaska Constitution for the governor that explains in no uncertain terms how Dunleavy violated the constitution.

“I believe the governor’s office does not understand the constitutional requirements for these nominations,” he made in remarks at an emergency meeting last Friday. “So I’m going to spend some time outlining the requirements of the constitution and the bylaws and procedures the council has adopted to follow the constitution.”

Article IV, Section 5 of the Alaska Constitution lays out that “The governor shall fill any vacancy in an office of … Superior Court judge by appointing one of the two or more persons nominated by the judicial council.” Bolger returned to the constitutional convention for the thinking behind the clause.

“Delegate Rivers stated that the governor ‘has no alternative but to pick one of the names that are presented to him by the judicial council.’ Delegate McLaughlin, who chaired the committee, later emphasized this requirement, stating that ‘under this article, the governor has no right of refusal,’” Bolger explained. “So it is clear that the founders intended this provision to mean exactly what it says: The governor must appoint one of the candidates nominated by the council.”

Dunleavy’s letter argued there were other qualified candidates the council overlooked when it nominated John Cagle, Christina Rankin and Kristen Stohler to the two open positions. Dunleavy selected Cagle, an assistant Anchorage district attorney, for one of the positions, but overlooked the two women.

Bolger responded that the qualifications for the court are seen as bare minimums: That applicants be licensed to practice law, that they have engaged in active practice for five years and are a resident of the state. Both Stohler and Rankin have been residents of Alaska longer than Cagle, and Rankin been practicing law longer than Cagle.

“The founders of our constitution did not intend that the citizens would be required to have their cases decided by a judge with minimal qualifications. Instead they intended that the council would ‘seek for the best available timber,’ that is to nominate only the applicants who are most qualified for the position,” Bolger said.

Bolger then went through the lengthy process the Alaska Judicial Council uses to vet candidates, describing a four-to-five month process including an application that delves into personal information like income, conflicts of interest and medical history. There’s also a request of information from attorneys and judges the applicant has worked with, along with a survey of all members of the Alaska Bar Association.

Defending the process

Dunleavy cast doubt on the process, noting that Peter Ramgren was nominated to a position in the Anchorage Superior Court but overlooked for the Palmer Superior Court (he’s currently nominated for the Anchorage District Court).

Bolger also addresses this, noting that “this is not uncommon because the councilmembers consider more than the individual candidate’s qualifications. Their votes are also determined by the strength of the other candidates, the nature of the open position, and the community the judge will serve.”

He went on to explain he understands this because he’s gone through it personally.

“Let me give you an example from my own experience,” he explained. “In 2007, I applied for the Alaska Supreme Court. I was nominated by the judicial council, but I was not appointed by Governor Palin. In 2012, I submitted another application. This time I was not nominated. But I applied again in 2013, and I was then nominated and appointed by Governor Parnell. My experience does not mean the council was arbitrary. I was not nominated in 2012 because there were more highly qualified candidates for the position at that time.”

Bolger’s letter also notes that Dunleavy’s Chief of Staff Tuckerman Babcock sent another letter to the Alaska Judicial Council that “requests access to the confidential information the council solicited during the nomination process.”

Bolger explained the need for confidentiality surrounding some of the application process, noting that it gives the applicants’ colleagues an opportunity to speak candidly.

“If an applicant is prone to angry outbursts, or inappropriate comments, or other character flaws, we want to learn about that and investigate during the application process,” he said.

The Chief Justice closed the lesson by explaining that Alaska’s judicial selection process is by far the most rigorous system applied to any agency in the state.

“I believe the Alaska Judicial Council maintains more public information about the candidates for judicial selection and judicial retention than any other state agency involved in an appointment process,” he said. “Sometimes I think that my entire professional life is on the council’s web site. And I believe the Alaska Judicial Council maintains a more neutral nomination process than any other State in the country. But I am likewise convinced that the procedures I have outlined are necessary for the public to be served by the most qualified candidates for judicial positions.”

The subtext here doesn’t need to be spelled out, but for those who haven’t been paying attention: Dunleavy’s track record of appointments isn’t particularly sterling. It has been marred with attempted appointments of folks with offensive social media presences,  a ghost-hunter and a commissioner caught lying on his resume and to the Senate.

There have been plenty of resignations, including one last week by an appointee to the Alaska Commission on Judicial Ethics who was facing pushback for his apparent failure to properly respond to a teacher—and personal friend—who was later convicted of sexually abusing students.

Why were they rejected?

Dunleavy didn’t explain why he believed Anchorage private-practice attorney Christina Rankin and Palmer private-practice attorney Kristen Stohler were not qualified for the position. The one thing that they have in common: Political contributions to former Gov. Bill Walker.

According to records with the Alaska Public Offices Commission, both Rankin and Stohler have given money to the campaign of Gov. Bill Walker. Stohler reportedly made a $500 contribution to Walker’s 2018 campaign on Aug. 9, and Rankin reportedly made a $30 contribution to the Walker Mallott campaign on Oct. 18, 2014.

A search of APOC records finds no other political contributions by Stohler. Rankin has reportedly made three additional contributions to Anchorage Mayor Ethan Berkowitz in 2015 ($20), Anchorage Assemblywoman Austin Quinn-Davidson in 2018 ($50) and to the Senate Democratic Campaign Committee in 2013 ($50).

While many appointees have lengthy campaign contributions to Republicans, the one appointee mentioned by name in Dunleavy’s letter—Peter Ramgren—does not appear to have contributed to any candidates in Alaska at any level.

But as Bolger pointed out in his statement, the judicial appointment process in the Alaska Constitution isn’t optional. The governor doesn’t have the power to pick and choose the judiciary that aligns with his political beliefs. The Alaska Constitution, which he swore an oath to uphold, says he must pick one of these nominees.