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Indiana attorney fights Alaska's merit selection

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A Terre Haute attorney has filed a federal suit challenging the merit-selection system in Alaska, arguing the state bar association has unconstitutional control over the judicial nominating commission and takes away the people's right to choose their judges.

Filed July 2 in the U.S. District Court for the District of Alaska, the complaint from two of Alaska's registered voters and a former judicial candidate alleges that their 14th Amendment right to vote is being violated by how the state's merit-selection system is set up. The complaint Hinger v. Carpeneti, et al., No. 3:2009-CV-00136, comes following the April announcement that Alaska Justice Robert Eastaugh is retiring Nov. 2 and the nominating council and governor must appoint a successor.

In Alaska, a seven-member Judicial Selection Council makes recommendations to the governor, who makes the final decision on a judge or justice. Of those seven members, the chief justice is the chair while three are non-lawyers appointed by the governor and confirmed by lawmakers, and three are lawyers appointed by the Alaska Bar Association's governing board.

The merit-selection system used in Alaska is similar to what's used in Indiana, with a few differences. The governor's three non-lawyer appointments must get legislative confirmation in Alaska, while that isn't required in Indiana. The Alaska Bar Association's governing board appoints the attorneys generally, while in Indiana lawyers in each of the three appellate courts' geographic areas choose a representative. Merit selection is also used for the Alaskan trial courts, where in Indiana it's used solely at the appellate levels and trial courts in Lake and St. Joseph counties.

In the complaint, Bopp argues that the plaintiffs are excluded from voting for a controlling majority of the bar association's governing board.

"While the Board of Governors may serve other functions that substantially and disproportionately affect only bar association members, in so far as the Board is given the power to select members of the Alaska Judicial Council, the election of Board members must comport with the requirements of the Equal Protection Clause," the complaint says. "Because it does not, the power exercised by the three attorney members of the council violates the equal protection clause with respect to Plaintiffs' right to vote."

The complaint and an accompanying injunction motion asks the District Court to declare the state constitution provisions unconstitutional, either on their face or as applied to the current impending vacancy. The motion also asks that the chief justice and remaining four members of the Alaska Judicial Council be stopped from following a requirement that a vote be unanimous among the remaining four members.

A copy of the full complaint and preliminary injunction motion are posted online at the James Madison Center for Free Speech.

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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