In an unprecedented move, Governor Michael J. Dunleavy has refused to fill one of two Palmer Superior Court seats. Yesterday, he announced four judicial picks but declined to fill the second Palmer seat. The appointments were:

• John C. Cagle to the Palmer Superior Court
• Nelson Traverso to the Utqiagvik Superior Court
• Stephen B. Wallace to Kodiak Superior Court
• David Nesbett to the Anchorage District Court

The governor is required to fill judicial seats by choosing from names sent by the Judicial Council. Article IV, section 5 of the Alaska Constitution states:

The governor shall fill any vacancy in an office of supreme court justice or superior court judge by appointing one of two or more persons nominated by the judicial council.

Alaska Statute AS 22.10.100, Vacancies, states:

(a) The governor shall fill a vacancy or appoint a successor to fill an impending vacancy in the office of superior court judge within 45 days after receiving nominations from the judicial council, by appointing one of two or more persons nominated by the council for each actual or impending vacancy. An appointment to fill an impending vacancy becomes effective upon the actual occurrence of the vacancy.

On February 4, 2019 the Alaska Judicial Council delivered the names of nominees for two Palmer Superior Court seats, as well as nominees for seats in Utqiagvik, Kodiak, and Anchorage, to Governor Dunleavy for appointment. The 45 day limit was yesterday, 3/21/2019. The Judicial Council was established during Alaska’s Constitutional Convention.

The Constitutional Convention discussion of this provision reveals that “the framers of Alaska’s Constitution intended to maximize the role of the Judicial Council in selection of judicial candidates.” Delahay v. State, 476 P.2d 908, 914 (Alaska 1970). The Alaska Supreme Court has accordingly held that the Judicial Council may discharge its duty by forwarding at least one more nominee than the number of positions to be filled.

George McLaughlin was the chairman of the committee that drafted this provision. During the Constitutional Convention proceedings, another delegate asked McLaughlin whether the governor could call for more names if he did not like the names suggested to him, thereby refusing to appoint from the names nominated by the council. McLaughlin’s answer was unequivocal, “Under this article, the governor has no right of refusal.” The Judicial Council’s bylaws accordingly provide that the Council will not reconsider the names submitted to the governor except in the case of disability or death of a nominee.

Susanne DiPietro, Executive Director of the Judicial Council, told me, “Based on this background and authority, the Judicial Council acted properly by forwarding three nominees for the two Palmer Superior Court positions. Under the terms of the constitution, the governor must now appoint the second Palmer judge from among these nominees.”

According to a press release from Governor Dunleavy:

“For the two positions on the court, the Council received 11 applications. From this field of candidates, you only nominated three candidates for two positions,” Governor Dunleavy wrote in a letter to the Alaska Judicial Council. “I believe there are qualified candidates that the Council inexplicably did not nominate for this position.”

“Alaska’s constitutional judicial selection process is supposed to be merit and qualifications based. The list you provided me does not appear to uphold this important standard,” wrote Governor Dunleavy.

“My authority to appoint members to the bench carries with it the obligation to exercise that authority thoughtfully and responsibly. My office has requested more information from the Council on candidates that were not recommended, including the Council’s reasoning for excluding some candidates,” Governor Dunleavy wrote. “I would like an opportunity to review and consider the Council’s reasoning to determine whether additional qualified candidates could be nominated by the Council for this position.”

Although two other governors have expressed dissatisfaction with the Council’s nominees, in both cases they relented and made the required appointments. In 2004 Governor Frank Murkowski asked the Council for more names but then relented and appointed Craig Stowers before the end of the 45-day period. Stowers went on to be appointed to the Alaska Supreme Court. He served as Chief Justice from 2015-2018. In 1993, Governor Wally Hickel requested more names but appointed Larry Card within the 45-day period. So, the two other times governors have asked publicly for more names, they have ultimately relented and appointed within the 45-day period.

DiPietro added, “The Judicial Council’s selection procedures are extremely thorough and transparent – in fact they are posted on our website in the bylaws and elsewhere. The Council collects and evaluates a great deal of information about the skills, qualities and abilities of each applicant to be an excellent judge, and it forwards the names that are best qualified in that particular group of applicants for that particular vacancy.”

In a press release, Representative Matt Claman (D – Anchorage), Chair of the House Judiciary Committee said, “The oath I take to serve in this office requires that I swear to uphold the Constitution of the United States and the Constitution of the State of Alaska. The Governor took the same oath to serve as our chief executive, and now he needs to live up to that solemn promise.”

I reached out to the office of Senator Shelley Hughes (R – Palmer), Chair of the Senate Judiciary Committee. I will update the story if she provides a comment.

The Judicial Council is holding an emergency meeting today at 4:30 pm to discuss the matter. A longtime Alaska lawyer described the situation by saying, “This is clearly the beginnings of what could very well become a constitutional crisis.”