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Saturday, October 02, 2010

Courts - Even more on "Lawsuit seeks to change how Kansas Supreme Court judges are appointed"

Updating this Sept. 15, 2010 ILB entry, which related that "A federal judge has denied a request to stop the way Kansas Supreme Court justices are selected," and this Aug. 29th entry where the ILB compared the Kansas and Indiana selection systems, this Oct. 1st story by Lisa Demer of the Anchorage Daily News reports that the 9th Circuit has rejected a similar challenge in Alaska. The headline: "Alaska's system for selecting judges is sound, court rules: Lawsuit was rejected as an attempt to change the constitution."

Some quotes:

Alaska's system of selecting judges will remain in place after the 9th U.S. Circuit Court of Appeals rejected a challenge.

In a decision released Thursday, the appeals court upheld an earlier decision by U.S. District Judge John Sedwick to throw out a lawsuit that contended that lawyers have too much say in picking judges.

The suit was brought on behalf of Kenneth Kirk, an Anchorage lawyer who has applied for judgeships but has never been nominated, as well as two other Alaskans, Michael Miller and Carl Ekstrom, who contend they don't get enough say in the matter. One of their lawyers was James Bopp of Indiana, general counsel for the James Madison Center for Free Speech. * * *

Under a system modeled after Missouri's and adopted after the constitutional convention more than 50 years ago, the Alaska Judicial Council nominates at least two candidates from a list of applicants for each open judgeship. The governor appoints from those nominated.

The council includes three lawyers named by the Alaska Bar Association board of governors, three non-lawyers appointed by the governor, and the chief justice of the Alaska Supreme Court. [ILB: sounds same as Indiana's membership, except our 3 attorneys are elected by the state bar membership.]

The plaintiffs wanted all participants involved in appointing Alaska judges either to be elected officials or named by an elected official.

The 9th Circuit found no constitutional basis for that and said the plaintiffs were trying to change Alaska's Constitution through the courts "because Plaintiffs would prefer judges to be elected and want to reduce attorney influence."

Here is the 21-page 9th Circuit opinion in Kirk v. Chief Justice. It concludes:
Alaska is not the only state to give a significant role to attorneys in the merit selection process. Fourteen other states, including Alabama, Hawaii, Indiana, Iowa, Kansas, Kentucky, Missouri, Nebraska, Nevada, New Mexico, Oklahoma, South Dakota, Vermont, and Wyoming, have systems in which (1) the nominating commission includes attorney members who are chosen neither through popular election nor by a popularly elected government official; and (2) the governor of the state must select a candidate nominated by the commission.

There are also well-established federal judicial appointments that do not conform to Plaintiffs’ desired universal principle. For example, federal magistrate judges are nominated by merit selection panels composed of lawyers and community members, and then appointed by a majority of district court judges in the district where the magistrate is to serve. See 28 U.S.C. § 631(a), (b)(5). Similarly, federal bankruptcy judges are nominated by merit screening committees and then appointed by federal appellate judges. See id. § 152(a)(1). In both cases, neither the judges nor the members of the nominating body are popularly elected.

Ultimately, Plaintiffs seek to effectuate a change in Alaska’s constitutional policy through the courts because Plaintiffs would prefer judges to be elected and want to reduce attorney influence. The pros and cons of merit selection as a system for selecting state court judges, and the pros and cons of giving attorneys a particular role in that system, were discussed at the Alaska Constitutional Convention. Debate continues to the present day. See Jeffrey D. Jackson, Beyond Quality: First Principles in Judicial Selection and Their Application to a Commission-Based Selection System, 34 Fordham Urb. L.J. 125 (2007) (characterizing debate). In the United States, the discussion of merit selection and attorney influence is ongoing and increasingly informed by empirical data. Some states have acted through the legislature or referendum to reduce attorney influence. See, e.g., O’Connor, 74 Mo. L. Rev. at 492 (describing Arizona’s “move from attorney-dominated selection commissions to commissions dominated by lay members of the public”).

[7] Alaska’s founders, when considering the selection of the members of the Judicial Council at the Constitutional Convention, discussed these tensions and resolved the debate in favor of the expertise that attorneys could bring to the process. The Equal Protection Clause, as long interpreted by the federal courts, does not preclude Alaska from making that choice. AFFIRMED.

Here is the O'Connor (Sandra Day, 2009) article - unfortunately (and like the Indiana Pattern Jury Instructions) it is freely available only to Lexis $$$ subscribers.

Posted by Marcia Oddi on October 2, 2010 10:44 AM
Posted to Courts in general