By: James Brooks, Alaska Beacon
In Anchorage Superior Court on Wednesday, attorneys for the state of Alaska defended Gov. Mike Dunleavy’s decision to name a former attorney to a public seat on Alaska’s judge-picking board, saying the choice was within the governor’s powers under the Alaska Constitution.
The governor’s choice of John W. Wood has been challenged by lawsuits filed by Juneau resident James Forrer and Alaskans for Fair Courts, a group devoted to the defense of the court system as an independent, apolitical branch of government.
They argue that if Wood’s appointment stands, it would give attorneys four of the six seats on the Alaska Judicial Council, the state board that accepts applications for judicial vacancies, selects nominees and forwards them to the governor for final selection.
Under the Alaska Constitution, the council consists of three attorneys picked by the Alaska Bar Association and three non-lawyer members of the public appointed by the governor and confirmed by the Legislature. In ties, the chief justice of the Alaska Supreme Court may cast a seventh vote.
The state contends that Wood is no longer an attorney and that he was a valid pick for an open seat. Both sides have asked for summary judgment, allowing Judge Yvonne Lamoureux to decide the case short of trial.
Wood’s appointment has been challenged on three main points. First, was the governor’s choice a valid recess appointment? Second, is Wood an attorney? Third, was he employed by the state at the time of the appointment?
Dunleavy appointed Wood in a letter dated May 29, filling a position that had been vacant since March, when a prior appointment expired. That was after the Legislature had adjourned for the year.
Under the Alaska Constitution and state law, a governor may fill vacant positions on boards and commissions when the Legislature is out of session, but the appointee will be subject to confirmation during the next regular legislative session.
Attorney James Reeves, arguing on behalf of Alaskans for Fair Courts, said his group contends that because a position on the Judicial Council became vacant during the legislative session, Wood may not begin serving until a confirmation vote takes place.
That contradicts existing practice, and Alaska Department of Law attorney Claire C. Keneally said in court on Wednesday that “it’s also not supported by the history of the (Alaska) Constitution” or the clause of the constitution that deals with appointments that take place when the Legislature is out of session.
“This is not a new or novel practice,” Keneally said of Dunleavy’s decision to not fill a March vacancy until May.
In 2015, then-Gov. Bill Walker filled a public seat on the Alaska Judicial Council in October; that seat had also been vacant since March, when the Legislature was in session.
Because of that timing issue, Keneally argued both in court and in writing, the case should be dismissed. Other arguments would be ripe for discussion only if the Legislature approves Wood’s appointment.
Wood was granted a law license in 1972, but it was suspended in 2000 because of a failure to pay dues to the Alaska Bar Association. Under a sworn affidavit, Wood said he has not practiced law since 2000 and has no intention of practicing law.
But in court on Wednesday, Reeves with Alaskans for Fair Courts said, “the Constitutional Convention history, which both sides have cited, indicates that the framers who discussed this understood the word non-attorney to mean layman or lay member. Is a lawyer who chooses not to practice law a layman?”
Reeves and attorney Joseph Geldhof, who was representing James Forrer in a separate but combined lawsuit also challenging Wood’s appointment, argued that because Wood held a state consulting contract at the time of his appointment, he was ineligible to serve on the Judicial Council.
The contract calls for Wood to advise the Alaska Department of Law on labor relations matters and to provide advice to the governor’s office when needed.
The Alaska Constitution states that no member of the Judicial Council may hold “any other office or position of profit under the United States or the state.”
But Keneally noted that the Alaska Supreme Court has previously interpreted that phrase to mean “salaried, non-temporary employment” with the state, and that other members of the Alaska Judicial Council, including some current members, have also held state contracts while serving on the council.
Lamoureux, who heard Wednesday’s arguments, said she intends to issue a written order within 30 days, the timeline requested by both sides of the case in order to allow a speedy appeal.
