Thursday, October 9, 2008

Meanwhile back at the Alaska Supreme Court

Remember "Troopergate" -- the Alaska Legislature's investigation into Gov. Sarah Palin's firing of Walt Monegan as Safety Commissioner, allegedly because he refused to fire Palin's ex-brother-in-law Wooten? -- the firing she recently defended on the grounds that Monegan was a "rogue" cop himself, trying to go off to Washington D.C. to get federal funding to help combat violent crime against women in Alaska, something Palin did not want him to do (although her staff authorized him to travel there -- they just did not know what he was going to do there. At least that was the story).

You may recall that Palin first agreed to fully cooperate with the investigation, which was initiated by bi-partisan panel of legislators. Once she was nominated the Republican VP candidate, however, she lawyered up, claming that she should not have to cooperate because investigation was unfair, biased, and politically motivated. She said she would only cooperate with an investigation of her conduct that she, essentially, launched herself -- one to be conducted by the state Personnel Board, whose members are appointed by the governor. When the legislature decided to proceed with their own investigation anyway, five Republican legislators loyal to Palin filed a lawsuit to try to stop them.

This was rather unusual, to say the least (the U.S. Congress certainly has launched plenty of investigations into allegations of misconduct by the President and others in the Executive branch). But never mind the legal technicalities. What was most peculiar was that Alaska's Attorney General first allowed himself to be drawn into the dispute, argued on behalf of the Governor's friends in the trial court, and then, when the trial court ruled against them last week, the AG instructed everyone to go ahead and talk. In other words, he gave it his best shot and then when he lost, he not only walked away from the case but actually instructed state employees to cooperate with the legislature's investigation.

The case might have ended there, but instead it was taken on by outside counsel, who filed an appeal with the Alaska Supreme Court. The lead attorney for the Palin side was Kelly Shackleford of the Liberty Legal Institute, a private, right-wing legal aid organization whose mission is to defend religious freedoms. The Alaska Supreme Court agreed to hear the expedited appeal and is scheduled to issue its decision by Friday, the day the legislature planned to report the results of its investigation.

In addition to the appellate brief filed by Shackleford, a brief was filed by a group of law professors associated with the Liberty Legal Institute entitled "Brief Amicus of Curaie of Law Professors and Legal Scholars in Support of Appellants" (i.e. a friend-of-the-court brief by third parties who claim to have some kind of special interest or expertise that persuades the court to let them file an advisory brief, which the court can then consider or ignore in reaching its decision). Aside from the silliness of having attorneys associated with the LLI file two sets of briefs (one for the legislators appealing -- the appellants -- and one as a group of "law professors and legal scholars" seeking to help the Alaska Supreme Court figuring out its constitutional duty), this development is remarkable in light of the identity of these "friendly" professors and scholars.

Celtic Diva has explored the matter in depth in Part I - Supreme Court Appeal by Religious Right Lawyers -- Who are they? and Part II - What is that "Amicus Brief" and who wrote it?. I mentioned earlier stories on LLI here, but CD's work surpasses that, having delved deeper into the background of not only the LLI but also that of the so-called experts involved in writing the amicus brief.

This would be almost funny -- the usual sort of right-wing nut cases who lurk among law school faculties everywhere (and yes, they have their counterparts on the left), coming to the rescue of the Alaska Supreme Court, to make it see how monumentally "unfair" it would be to allow the Alaska legislature to investigate -- if it were not for the fact that these are the sorts of "strict constructionist" legal scholars who might end up on the U.S. Supreme Court if McCain-Palin were elected. There are reputable jurists who hold conservative views on all kinds of legal issues (though nowadays it is difficult to use terms like liberal and conservative meaningfully with respect to the wide range of issues that can divide the justices). The problem with these folks, however, is that they have invoked their supposedly lofty ideals for the purpose of buying time for one side in this purely local political dispute, one that clearly is within the province of the legislature and from which the governor should not be able to evade simply because she decides that it will not treat her "fairly" and give her the result she wants. If they really believe that courts and officers of the executive branch should be allowed to collude to prevent a legislature from functioning as a political body, then we should all be deeply worried if they ever achieve power. And it is laughable, to say the least, that so-called strict constructionists would seek to broaden the concept of Due Process beyond all prior case law and decide that it extends to the "unfairness" of exposing a governor's actions to legislative scrutiny.

In the end nothing may come of the Troopergate charges -- or, at most, a legislative opinion that the governor could have better handled her family situation so as to avoid even the appearance of impropriety. But if there truly is nothing seriously wrong to hide, all the more reason why the legal system should not have been abused by this litigation.

For anyone who really wants to delve into the facts of the case and the detals of the legal dispute, the trial court's order and all the briefs are currently available at the Alaska Supreme Court's website here (Keller, Wes etal. v. French, Hollis, etal.)

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