Justice Bolger's neutrality is in question, so he needs to sit this one out - Must Read Alaska
Connect with:
Saturday, April 4, 2020
HomeColumnsJustice Bolger’s neutrality is in question, so he needs to sit this one out

Justice Bolger’s neutrality is in question, so he needs to sit this one out

By ANN BROWN

Alaska Supreme Court Chief Justice Joel Bolger’s ability to participate impartially in the recall case has been called into question by a group opposing the governor’s recall, as well as by many voters who cast ballots to elect him in 2018.

The reason for concern about Justice Bolger’s ability to judge the appeal fairly is due to his direct involvement in the events at issue.

The trouble is not that Justice Bolger is an unfair jurist, or that he won’t try to put his personal feelings aside, as any ethical judge would who is trying a case.

The problem is that under these circumstances, the Code of Judicial Conduct dictates that he must recuse himself; failing to do so would undermine the independence of the judiciary and erode the public’s faith in the rule of law.

In an unusual letter recently, the Supreme Court acknowledged that Justice Bolger “joined and issued public statements that may relate to the events listed as recall grounds 1 and 3(a) under consideration of this case.” He did. But the letter failed to mention Justice Bolger’s multiple additional expressions of displeasure with the governor’s public policy decisions. These include:

1) Justice Bolger’s opinion that the governor’s office “does not understand”his constitutional duties for judicial appointments (the precise topic of ground 1);

2) Justice Bolger had an in-person meeting with the governor about the very judicial appointment at issue.

3) Justice Bolger delivered his negative public statements about the governor’s line-item veto of the Supreme Court’s budget (ground 3(a)) to the Alaska Federation of Natives, a group that vocally opposes the governor’s line-item vetoes, and whose attendees famously stood and turned their backs to the governor while he was delivering an address to them.

Rather, the letter stated that Justice Bolger is not biased and prejudiced, and he “knows of no other reason why he cannot render a fair and impartial decision in this matter.” The court then invited the parties to file a written motion to disqualify Justice Bolger if any of them disagree.

All judges, particularly the chief justice, must not only be impartial, they must also appear to be impartial. The Code of Judicial Conduct provides that when a judge’s impartiality “might reasonably be questioned,” that judge “shall disqualify himself.”

This obligation falls on the judge, and the judge alone. This is a deliberate feature of the Code of Judicial Conduct, designed to remove the pressure from litigants and their attorneys who, if any raised the issue, would also risk raising the judge’s ire.

Where it is obvious that a judge’s impartiality might be questioned, and the judge does not at least offer to recuse himself, this means the judge has already decided he’s not going to self-recuse. Here, Justice Bolger already concluded that there is no reason to recuse himself. He has invited any party who disagrees to file a motion to disqualify him.

This is akin to the emperor telling his courtiers, “My new clothes are undeniably beautiful and so fashion-forward. But if you disagree, feel free to tell me that I am naked.” This is exactly the awkward situation that the Code of Judicial Conduct is designed to avoid.

By all accounts, Justice Bolger is an able jurist with no history of biased rulings. That, however, is not the point. In the circumstance in which Justice Bolger has stepped into the public arena to comment on the governor’s ability to understand his job, to criticize him publicly to at least one group which is already antagonistic to him, and held a meeting with him to discuss the subject of one of the recall petition charges, it is no accident that Chief Justice Bolger finds himself in a compromised position.

In fact, one could reasonably conclude that the pro-recall group took note of the chief justice’s very public comments and tailored the petition to appeal to him in particular.

The rule of law, shepherded by an impartial and independent judiciary, is what sets our nation apart from much of the world. But to maintain this independence and credibility, jurists must be — and appear to be — above the fray. Here, the chief justice entered the conflict in a very public way. He might reasonably argue that this was his duty, because as chief justice, it falls to him to submit and protect the court’s budget and to serve as chair of the Judicial Council.

But, no matter the reason, Justice Bolger engaged in the public debate over the governor’s actions. Having done so, he needs to sit this one out. There is no shame in doing so, only honor.

Ann Brown is a retired trial lawyer who is the Vice Chair of the Alaska Republican Party. 

Donations Welcome

Share

Latest comments

  • My Uncle, Hon. John H. Dimond would agree. Step Down!

  • Step back.

  • It appears that the Chief Justice has already rendered his opinion on his own fitness to rule on the Recall, despite the facts presented. The only question that remains is, what happens now ? Is there any other recourse than for either of the Counsels in the case to question his competence to rule impartially on this matter ? And if they do, how can that not impact what is already an obvious problem ? Nonetheless, the Counsel opposing the Recall also has to take the appropriate action, despite any risks involved. The situation demands it.

    • I think you have it Andrew. Nobody has formally requested for Bolger to recuse-why do you suppose that’s the case?
      Here is former AG Botelho on this situation: The charge that the chief justice has “refused” to recuse himself implies that he has been requested to do so. “Stand Tall” has made no such request. The reason for recusal: he is a “material witness” Really? The recall allegation was the governor’s failure to make a judicial appointment within the time specified by the Alaska Constitution. As administrative head of the judicial branch, the chief justice simply advised the governor that he had a duty to pick from the list of nominees made by the judicial council. In that sense, we’re all “material witnesses.”

      • Bill,

        Did you read the article at all? Specifically the part that say “This obligation falls on the judge, and the judge alone. This is a deliberate feature of the Code of Judicial Conduct, designed to remove the pressure from litigants and their attorneys who, if any raised the issue, would also risk raising the judge’s ire.”

        • Like Andrew says: “Nonetheless, the Counsel opposing the Recall also has to take the appropriate action, despite any risks involved.”
          Do you know of any other reasons nobody has formally requested it?

  • By not self recusing the Chief Justice is setting the appeal process to the 9th Circuit Court in Motion. By also not self recusing he is showing his Ignorance of the Law and Judicial Purity. The voting citizens shall remember this and the next election cycle for his remaining on the Court will see him being dismissed by the Citizens of Alaska.

  • I think he should recuse himself, since he has been to involved .

  • Could a likely Appeal based on his obvious bias be something the Judge would welcome! More treasure from the State to be divided among his cronies at the Alaska Judicial Council by way of attorney’s fees!

  • On this issue….Jay Rabinowitz would have this idiot, Judge Bolger for snacks and lunch, and more than likely push him into the leaching field of “bad Judges” and attorneys. Would he survive the legal shunning? I don’t think so!! We need to elect these judges, change the state constitution.

    • Yes, someone going by the handle of DK is calling for a change in constitution and wanting to elect judges. Further refers to chief justice of our SC as an idiot.
      Why folks will be just stampeding to get on board with your ideas. Heheh!

      • Why looky there… Someone going by the handle “Billy Yankee” is ridiculing someone who states an opinion that Doodle Boy doesn’t agree with. I bet folks are just stampeding to get on board with Doodles ideas. Heheh!

        • Well there you are again Lee Terry without a single thing to add to the conversation-I’ll bet you are a blast at parties.

          • “Yes, someone going by the handle of DK is calling for a change in constitution and wanting to elect judges. Further refers to chief justice of our SC as an idiot.
            Why folks will be just stampeding to get on board with your ideas. Heheh!”

            Well, there you are again Doodle Boy, without a single thing to add to the conversation. I bet you don’t get invited to parties at all.

          • Well there you are again parroting DK’s ideas without adding a single thing. Notice that DK hasn’t shown himself since his drive-by bit about calling SC chief justice an idiot. Perhaps you think similarly but don’t have the guts to say it. What is it Lee?
            All you’ve contributed is some juvenile name calling.
            Like I said earlier I must be hitting a nerve.
            Tough noogies Lee.

  • The conflict here is enhanced because in today’s political climate the Left believes that it not only should win, it MUST win. And the rules be damned. In their world, principle must yield to necessity. The only integrity that is recognized is loyalty to the “progressive” cause.

  • May we respectfully ask, Ann Brown
    .
    Have you petitioned Alaska’s Commission on Judicial Conduct, per Alaska Statute AS 22.30.070 (c) (2), to determine whether reprimand, suspension, or removal of Chief Justice Bolger is appropriate for: ” willful misconduct in the office, willful and persistent failure to perform duties,… conduct prejudicial to the administration of justice, or conduct that brings the judicial office into disrepute.
    .
    Have you asked the Commission whether Chief Justice Bolger’s actions transformed Alaska’s Judiciary from enforcer of laws into a corrupt system of favors, partisanship and political ideology where justice can be bought and sold, and (b) whether Bolger illegally used his judicial authority and discretion to “fix” litigation outcomes, manipulating and circumventing the rule of law.
    .
    Have you requested the Commission on Judicial Conduct to determine whether Bolger’s October 2019 speech to the Alaska Federation of Natives is evidence that judicial power and discretion were used illegally to “fix” a case, to ensure a certain litigation outcome, meaning Bolger effectively manipulated and circumvented the rule of law to remove a duly elected governor and disenfranchising his voters?
    .
    The issue is not AFN’s mission: “… to enhance and promote the cultural, economic –and political voice– of the entire Alaska Native community. Our major goals are to: Advocate for Alaska Native people, their governments and organizations, with respect to federal, –state–, and local laws…”.
    .
    The issue is whether Bolger, as Chief Justice, willfully violated Alaska’s Code of Judicial Conduct against improper political activity by asking a political organization: “… to join me in resisting political influence in our courts.”, referring to Governor Dunleavy’s exercise of discretionary budgetary authority.
    .
    Are you prepared, against inevitable argument to the contrary, to counter with: (a) if AFN had no political influence, was not a political organization, Justice Bolger would not have invested extraordinary effort in asking AFN to “join” him in discrediting Governor Dunleavy’s discretionary budgetary authority; and (b) Bolger’s judicial power and discretion were issues because a reasonable person could expect that AFN’s refusing a Chief Justice’s impassioned, public plea would lead to
    unfavorable consequences for AFN?
    **********
    Our “Must Read Alaska” reported “ met on March 26, 2019, (Bolger and Dunleavy) met in a private meeting in which (they) discussed the judicial appointment process, during which time Dunleavy was able to express his concerns about too few candidates being sent to him for his consideration.”
    .
    We know Bolger does -not- report to Dunleavy, but Attorney General Clarkson does report to Dunleavy.
    .
    Clarkson apparently was not in this “private” meeting, which suggests non-lawyer Dunleavy -and his constituents- were intentionally deprived of backup for legal facts and arguments in a legal discussion with Chief Justice Bolger.
    .
    Have you asked whether Clarkson’s absence was a condition of the meeting so the Attorney General would not be available to reinforce Dunleavy’s -and his constituents’- concerns about the number of applicants and what controls how applicants’ names get on the list?
    .
    Have you asked, if the subject were -not- recalling Dunleavy, would Bolger have simply recused himself “sua sponte”?
    .
    Have you asked whether no formal recusal request was made because: (a) of simple oversight (b) judicial culture in Alaska is so hostile that lawyers are routinely intimidated by threats, expressed or implied, of judges’ retaliation (c) lawyers are more concerned about the effect on their careers in Alaska’s tightly knit legal community?
    .
    Have you asked the Commission to determine whether no formal recusal request was made because of undue influence from Outside interests which may be invested in the outcome?
    **********
    From Alaska’s “Code of Judicial Conduct”:
    .
    Canon 3, page 10: “A judge shall not seek or accept a waiver of disqualification when the judge has a personal bias or prejudice concerning a party or a lawyer, when, for any other reason, the judge believes that he or she cannot be fair and impartial…”
    .
    Canon 5, page 17: “(a judge may not) make statements that commit or appear to commit the candidate to a particular view or decision with respect to cases, controversies or issues that are likely to come before the court…”
    .
    Canon 5, page 20: “A judge shall not engage in any political activity except (i) as authorized under any other Section of this Code, on behalf of measures to improve the law, the legal system, or the administration of justice…”
    .
    Canon 5, page 23: “Political activity” means:
    (vi) taking part in a political campaign to… recall someone from such an office, or to enact or defeat a ballot proposition;
    (vii) taking any other part in the management of a political party or organization, or a political candidate, or a group for or against a ballot proposition;
    (viii) soliciting votes in… support of or in opposition to an incumbent’s recall from such an office, or in support of or in opposition to a ballot proposition;
    (ix) publicly endorsing or opposing… a ballot proposition, whether in a speech, a published letter, a political advertisement or broadcast, campaign literature, or any similar material…”
    **********
    Have you asked the Commission to determine whether evidence shows Chief Justice Bolger has such a personal bias against Governor Dunleavy that Bolger would engage in political activity prohibited by the “Code of Judicial Conduct” to: (a) prevent Dunleavy from doing his job, and (b) disenfranchise Dunleavy’s constituents by removing Dunleavy from his job?
    .
    Have you asked the Commission to determine whether Bolger should be removed as Chief Justice?
    .
    If not, are you simply preaching plaintive, pathetic platitudes about “honor” while yet another branch of our state government slides into one big happy RICO enterprise?

    • I just heard the sound of someone being blown out of the water.

      • IMO – Morrigan just gave Ann Brown a battle-plan.

  • “In fact, one could reasonably conclude that the pro-recall group took note of the chief justice’s very public comments and tailored the petition to appeal to him in particular.”

    It does have that appearance, and it could appeal to ones ego.

  • Here are the pertinent sections from the American Bar Association Rule 2.11 Disqualification

    (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to the following circumstances:
    (5) The judge, while a judge or a judicial candidate,* has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.
    (6) The judge:
    (b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy;
    (c) was a material witness concerning the matter; or
    (C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.

    • Former AG Bruce Bothelo took pretty good care of the “material witness” matter in my above comment.

      • You just can’t see the forest for the trees can you Bill?
        .
        Let’s assume that the material witness matter is taken care of, which it isn’t, what do you make of ALL of the other reason that the judge should recuse himself before he needs to be asked to do what’s right?

        • What are all the other reasons you speak of here? And what is your take on why material witness matter is still an issue?
          This is a done deal unless counsel formally requests of Bolger to recuse-your argument is with them IMO.

          • Bill,

            It’s all right there in my post that you just commented on. Right up there^ do I need to repost it again or can you read all of the pertinent sections from the American Bar Association Rule 2.11 Disqualification without me having to do that? You’ve only addressed one of the subsections for why this judge should recuse himself without having to be asked to do what’s right. What about all of the other sections? We’ve already covered the material witness subsection, can you explain away the rest or not?

          • The problem is that you think he should recuse himself based on what (other than your biased opinion)? He is certainly closer to the situation than you or Ann Brown and he doesn’t feel the need. Thus it comes down to counsel has to request he recuse himself. This is starting to look more like just another stalling thing-wait till the last minute and then request. Heheh!

          • Bill,

            Do you ever read the articles or just the comments? All of the information you want has been covered many times over on the subject, if you doubt that just read what is written above the comment section

        • You are referring to an opinion piece from a biased Republican and nothing she has said means a single thing other than in the public opinions of a few low brows on this site (you evidently included). Bolger has done all he’s required to do by the statutes and if anyone has a bone to pick with him they merely have to speak up within those said statutes. You keep on with things like “do what’s right” but neither Ann nor anybody else can point to where that comes from-it’s certainly not in statute.
          You don’t like it, tough noogies!

          • It has all been pointed to Bill, numerous times. You are responding to my comment where I said the following:
            .
            Here are the pertinent sections from the American Bar Association Rule 2.11 Disqualification

            (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to the following circumstances:
            (5) The judge, while a judge or a judicial candidate,* has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.
            (6) The judge:
            (b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy;
            (c) was a material witness concerning the matter; or
            (C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.
            .
            Two post before my original post Morrigan also provided the information on the Alaskan Code of Judicial Conduct you so desperately pretend to not know exists.
            .
            You still have only attempted to explain away one of the subsections, you have no answer for the others.

          • You are reaching now!
            It’s pretty apparent why counsel has not asked the judge to recuse himself-namely because they don’t have grounds.
            Good luck to you.

          • Doodler:
            You post your BS on a frequent basis. Have you donated any money to MRAK to keep up the truth stories by Suzanne? Or do you just sponge like most leftists do?
            Most posters, myself included, have donated to Suzanne. You?

          • Says someone hiding behind the handle ChrissyB. I guess I can understand why you wouldn’t want to use your name. Heheh!
            That said the important thing here is that Bolger has recused himself.

          • Bill,

            Guess who just recused himself, and in so doing had this to say “this is a case where a reasonable person might question whether my judgment is affected”. Seems like the Chief Justice disagrees with you. https://mustreadalaska.com/under-pressure-chief-justice-recuses-from-recall-question/

%d bloggers like this: