Objection to List of Nominees Selected by Alaska Judicial Council Based on Discriminatory Practices

Objection to List of Nominees Selected by Alaska Judicial Council Based on Discriminatory Practices

submitted by David Ignell

Dear Mr. Dunleavy:
As you know, earlier this week the Alaska Judicial Council (“AJC”) nominated 3 candidates for your
appointment to the newly created position on the Alaska Court of Appeals. The selection process utilized
by the AJC was flawed in two areas, including racial discrimination, as described in greater detail herein.

It is requested you stay your appointment to the Court of Appeals until the AJC corrects these deficiencies
and provides you with a list of nominees that 1) have been properly vetted using data reflecting the
opinions of Alaska Natives, and 2) have been voted on only after a properly conducted public meeting.

The legal authority for staying the appointment should be simple enough. The AJC did not follow their
own guidelines in providing you the list of nominees. The data upon which its nominations were made
violated the AJC’s prohibition against discriminatory practices. Public comments in support of racial
equality in the selection process were cut off arbitrarily and unfairly by Chief Justice Bolger.

The product of a tainted selection process is invalid. The AJC has failed to provide you with a valid list and
is therefore required to re-advertise the position.

As you are aware, the Court of Appeals primarily handles criminal cases and is often the last forum for
Alaska Natives to have their constitutional rights upheld. The Alaska prison statistics bear out the failure
of the state appellate judges to honor their oaths.

Adult Alaska Native women comprise 44% of all female prisoners despite representing less than 10% of
the general population. Even worse, while the number of incarcerated Alaska Native women has
increased in the past decade, the number of incarcerated white women has declined by 30%. Alaska
Native male adults comprise 39% of all male prisoners but also less than 10% of the general population.

This substantial and growing racial disparity in the prisons makes Alaska Natives an important stakeholder
in the judicial selection process. The fatal deficiencies in the list of nominees the AJC has provided you
are as follows:

First, the required public hearing was a sham. Chief Justice Bolger refused to allow public participants the
opportunity to complete their remarks, and to yield their arbitrarily allotted time to other participants.
He stifled comments he didn’t agree with. He ignored the suggestion that the comments created a conflict
of interest for him and didn’t recuse himself from a public hearing which he converted to a courtroom
proceeding and assumed the dual role of judge and jury.

When Mr. Bolger made his adverse “rulings” there was at least one-half hour remaining in the hour of
time that the AJC had posted for public comments. There were no other members of the public waiting
to be heard other than those who wanted a fair chance to convince at least 3 of the Council members to
postpone their vote so that the AJC could collect the necessary survey results. Most of the public
participants wanting this chance were Alaska Native women.

Mr. Bolger evidently did not wish the Council members to hear specific evidence of how he and other
selections of prior Councils have demolished the Alaska Constitution when it comes to protecting the
rights of Alaska Natives to a fair trial in criminal cases. That Council members need to scrutinize applicants
not on what they say but what they have done.

Mr. Bolger prevented the Council members from being reminded that the Alaska judges they nominate
must be “peculiarly sensitive to racial discrimination” according to former Chief Justice Rabinowitz. Mr.
Bolger prevented the Council members from hearing the acknowledgment of former Chief Justice Boney
that urban Alaskans are not sensitive to vast cultural differences in the villages.

These comments would have helped establish the point that the top priority for Council members should
be to nominate only those applicants who have shown a prior commitment to protecting at all costs the
constitutional rights of Alaska Natives to an impartial jury and a fair trial. Self-serving statements by
applicants in their interviews are insufficient proof. Observations of non-Native attorneys are insufficient
proof. The missing and necessary proof is in the opinions of Alaska Natives – those who bear the daily
grief of having their sons, daughters, brothers and sisters unjustly taken away from them.

Mr. Bolger also cut off comments that would have shown Council members that their reliance on
insufficient data resulted in a poor decision for a similar vacancy two years ago. One of their 2018
nominees was responsible for blatantly trampling on the constitutional rights of an innocent Alaska Native
who was not given a fair trial nor tried by an impartial jury, resulting in a prison sentence of 50 years.

Second, the Council refused to delay their vote to extend the scope of their surveys to include the opinions
of Alaska Natives. In advance of the AJC’s meeting, only members of the Alaska Bar Association were
invited to respond to surveys rating the judicial applicants. Responses were categorized by type of
practice, length of practice, area of practice and gender, but not by race.

The Council members knew how each sex graded the applicants but had no way of knowing how Alaska
Native members of the Bar Association graded applicants. To include data based on gender while
excluding data based on race is discriminatory – there’s no way around that truth which is underscored
by the racial disparity in Alaska’s prisons.

As you know, there are not a lot of Alaska Native lawyers admitted to the Bar and even less in the Alaska
Court System. To provide further reliable data points, the public participants requested the AJC to seek
responses from the 231 recognized tribes as a group separate and distinct from members of the Alaska
Bar Association.

This was a very reasonable request for the AJC because they’ve already established the precedent of
soliciting responses from multiple groups for superior and district court positions. The comments in
support of this proposition were cut short by Mr. Bolger and the Council proceeded to vote using data
stemming from racially discriminatory practices.

The AJC may contend that the voice of Alaska Natives is represented by two of the members of the Council.
This contention fails for a few reasons, previously pointed out to the AJC, but demonstrates how deeply
racial discrimination is rooted in the AJC. On one hand, the opinions of thousands of Alaska Natives
through the 231 tribes are not sought and must be filtered through two individuals who aren’t elected
representatives. On the other hand, the opinions of hundreds of mostly white attorneys are sought, not
filtered, and given exclusivity in the data. The process smacks of colonialism.

I want to conclude this letter by making some overall observations that point to the bigger picture.
Mr. Bolger’s boldness in asserting unbridled dominion over the public’s limited voice should be the final
straw in breaking what many believe is a very specious process for selecting Alaska judges. The public has
no right to determine who can become a judge. The public doesn’t even have the right to elect the
members of the Council.

Deliberations of the Council are held in private without public access. Does Mr. Bolger strong arm the
other Council members like he did the public participants? What goes on behind the scenes when the
Council is not in session? What political influence does the Alaska Bar Association have on its four Council
members, who always have a monopoly over Council decisions and thus establish the talking points. Who
within the ABA has “open door” access to their Council members and who does not?

The proponents of the “Missouri Plan” claim this system cuts down on politics. Hogwash. Evidence exists
of political influence being heightened and easily manipulated because the power is held by so few. It’s
completely naïve to believe that positions of power craved by attorneys who want to climb ladders won’t
be subject to politics. The power needs to be spread out and the process needs to be transparent.
Constitutional rights should not be bargaining chips at ABA-member dominated cocktail parties.

The power to elect non-partisan judges should be given to the people. If judges don’t apply the
Constitution, the public should have the opportunity to vote them out. No system is worth throwing away
the lives of innocent people or even the rights of guilty ones. Anyone who thinks otherwise should
volunteer to trade places with those Alaska Natives who have been wrongfully convicted or forced to take
unfair plea bargains because they know the Alaska Court System doesn’t protect their rights.

It may take a constitutional amendment to change the Missouri Plan, but it doesn’t take a constitutional
amendment to require the AJC to consider the opinion of Alaska Natives. That requirement already exists
in the Alaska Constitution. It’s firmly rooted in the concept of equality.

Based on the foregoing, the appointment of the next Court of Appeals judge should be stayed until the
AJC complies and includes Alaska Native tribes in their surveys regarding the qualifications of judicial
applicants. I am joined in this request by the family of Thomas Jack Jr., of Hoonah, AK as well as other
Alaskans, Native and Non-Native.

Yesterday I notified the Executive Director of the AJC, Ms. Susanne DiPietro, that I would be lodging this
objection and she has been copied with this letter.

Thank you for your consideration,
David Ignell
Forensic Journalist, www.poweredbyjustice.com
Public Advocacy And Justice For All Alaskans