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When is it OK for Assembly to close meetings to public? An Alaska judge will decide

A judge on Friday heard arguments for and against a preliminary injunction to stop the Anchorage Assembly from pursing actions taken during a several-week span when it closed its meetings to the public this summer.

Superior Court Judge Una Sonia Gandbhir heard from Alaskans for Open Meetings attorney Michael Corey, who argued that the Assembly, by shutting out members of the public, had broken the Alaska Open Meetings Act.

From Ruth Botstein, the municipal attorney defending the Assembly, the court heard a “we’re too big to fail” argument — that the actions taken during the violation of the Open Meetings Act were so consequential, so monumental that they simply cannot be undone.

In late July, the Assembly forbade the public from entering the Loussac Library’s Assembly Chambers. The barricading of the Assembly came after former Mayor Ethan Berkowitz used his emergency powers and placed a ban on public gatherings.

For all of August the public was prohibited from observing the Assembly, Planning Commission, or other quasi-judicial meetings. The only way taxpayers could participate was by watching the meetings through a grainy, government-controlled camera, and by calling in their testimony via telephone — if they could get through.

The Assembly conducted some extraordinary business during those closed meetings: It decided on expenditures for $156 million in CARES Act funds, including the purchase of four buildings for homeless and vagrant services. It passed an ordinance prohibiting the counseling of gay teens in a practice loosely referred to as “conversion therapy.” And it approved the hiring of a new municipal employee called an “equity officer,” to address systemic racism in the city, at the cost of over $120,000 a year.

[Read: Mayor seeks to hire equity officer]

During meetings leading up to meeting closure and the final decisions on how to spend CARES Act funds, the Assembly Chair Felix Rivera spoke on the record that the funds would have to remedy racial equity, or he would not vote for them.

The State of Alaska’s Open Meetings Act (AS 44.62. 310-. 312) requires that all meetings of a public entity’s governing body be open to the public. The act also says the meetings may be attended by the public via teleconferencing, but the attorney for Alaskans for Open Meetings said that teleconferencing was never meant to be a substitute for attendance in person.

The fact that the Assembly members themselves were inside the chambers during those meetings was proof that it was possible to have in-person meetings, said Frank McQueary, a member of the group that is suing the Assembly.

“They had meetings. They even brought in people who they wanted to hear from. They excluded the rest of the public and created their own echo chamber,” McQueary said.

Botstein argued that the open meetings group had taken too long to file their lawsuit and that there’s too much to undo now.

“That argument is yet another barrier to participation,” McQueary said. ” The public is crippled on the best day of the year because it’s at such a disadvantage financially and in terms of time, while the city has its lawyers lined up and ready to go.”

McQueary said that the public assumes the governing body of the Assembly has its best interests at heart, and simply isn’t ready at any given moment to finance a lawsuit against lawmakers.

His group, whose members include former Lt. Gov. Craig Campbell, had to raise money and hire a legal team — all during a time when indoor gatherings were made illegal or impractical due to the COVID-19 pandemic. The Alaskans for Open Meetings group itself has had to cancel some of its meetings due to lockdowns by the current acting mayor.

“This ‘Too big to fail’ argument is the Assembly admitting that what they have done is wrong, but is too costly to unravel. If that is given too much weight by the court, then it eviscerates any remedy in the Open Meetings statute,” McQueary said.

During the hearing, Corey explained to the court that the Municipality was trying to give the court all the reasons why it was OK for the Assembly to break the law.

It’s like telling a police officer all the reasons why was OK to drive 80 miles per hour in a school zone — the roads were dry, the car was in good shape, and there wasn’t anyone around.

Corey said it is not the intent of the law to say people can follow the law only when they decide it’s appropriate for them personally.

Judge Gandbhir didn’t give a sense on when she might rule on the matter. A ruling from her either way will almost certainly be appealed to the Alaska Supreme Court by whichever side loses the argument.

The open meetings group wants Judge Gandbhir to at least stop the purchase of the buildings, which are controversial uses of CARES Act funds, until the matter of the Open Meetings group works its way through the court appeals.

The public’s involvement is critical, the group said on Saturday.

“We think ongoing public activity on this issue is very important,” said Craig Campbell, who once served on the Assembly. “I would ask people to get involved. Attending Assembly meetings is one way to show that we want the meetings open.”

Campbell then pointed out the hypocrisy of closing the meetings in August, when the coronavirus was not yet that widespread.

Today, the Assembly chamber is open again for limited public participation, and yet the incidence of positive COVID cases has never been higher in Alaska. That reopening of the Assembly meetings only came about because of intense public pressure, including weekly and often noisy demonstrations outside the Loussac Library, where the meetings are held.

Learn more about Alaskans for Open Meetings at this link.

Historic: Recount gives Democrats 19 seats in House for first time since 1992

A 13-vote Democrat lead shrank to 11 votes after a formal recount Friday of the House District 27 race.

Liz Snyder, a university professor who presents herself as a public health expert, will be the new representative for the district after she squeezed by Rep. Lance Pruitt, who has represented East Anchorage since being elected in 2010.

Snyder only won 749 votes in the Democratic primary, where she ran unopposed, while Pruitt won 1,302 votes.

But ballot harvesting by Democrat candidate for U.S. Senate Alan Gross was targeted on urban Anchorage areas, and pulled Snyder and other Democrats to a win. She had with 4,574 votes to Pruitt’s 4,563 votes.

The hand recount was conducted in Juneau under the watchful eye of witnesses from both candidate camps. Pruitt gained one absentee vote and Snyder lost one.

The House is split between Democrats (and their independent surrogates) and Republicans, 19-21, which will make organizing the House especially difficult.

Several political insiders believe the Democrats will take control of the House once again, and now control more actual seats in the House of Representatives than they have in generations.

The last time Democrats had 19 actual seats in the House was in 1992, when they had 20.

Ballotpedia graphic

An audit of Ballot Measure 2, the remaking of Alaska’s election methodology, will begin Monday, according to the Division of Elections.

No mask mandate in Soldotna

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The Soldotna City Council on Wednesday axed a proposal to require people to wear nose and mouth coverings when in buildings open to the public.

An ordinance offered by Council members Pamela Parker and Jordan Chilson received hundreds of comments from the public. Health professionals lobbied for it, saying the medical sector could become overwhelmed if the virus spreads more quickly in Soldotna, while members of the public testified against the mandate and said it would kill the economy of the town of 4,700, which is situated close to the no-mandate City of Kenai. The testimony ran 4-to-1 against the Soldotna mandate.

Some private businesses already have mask rules but the sponsors of the ordinance wanted widespread mandates to reduce the spread of COVID-19.

While the Kenai Peninsula cities of Homer and Kenai do not have mask mandates, Seward implemented one last month and is the only city on the Kenai Peninsula to have done so. In Palmer, in the Mat-Su Valley, the proposal was nixed after hours of testimony, predominantly against it. The mayor of Anchorage has mandated masks for those in public places, and Juneau is a masked community, while Sitka is not.

Presumed president-elect Joe Biden, while running for office, said that he would implement a national mask mandate and criticized President Donald Trump for not doing so, but on Friday he softened his stance, saying he would “ask” Americans to wear masks for 100 days, after he is sworn in as president.

MRAK app for iPhones is live!

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Readers, take note: You can download the Must Read Alaska app from the Apple App Store on your iPhone.

Launched this fall on Android, the app is now being used by hundreds of Android phone owners.

Now, those with iPhones have an app that will put the most recent stories from MRAK right at their fingertips.

Much thanks goes to John Quick of Nikiski, who developed these apps for Must Read Alaska. John, who joined MRAK this year as vice president of business development, has been working hard on this project for several months and I’m proud of the finished product.

Must Read Alaska also wishes to thank the two Republican women’s clubs on the Kenai Peninsula for test-driving the app before we launched it: Kenai Peninsula Republican Women of Alaska in Soldotna, and Republican Women of the Kenai. Both Kenai clubs have been supporters of this conservative news site and their support this year allowed MRAK to take the financial leap to launch the apps.

You can find the Apple App Store on the front of your phone, and the Must Read Alaska app is a free download. Just type in Must Read Alaska in the search panel. And let me know what you think by sending a note to [email protected] with your comments.

State Senate committee to hold COVID vaccine hearing

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The Senate Health & Social Services Committee will hear a presentation by the Department of Health and Social Services on the state’s COVID-19 vaccination plan on Monday, Dec, 7, at 10 a.m. in the Anchorage Legislative Information Office.

“Monday’s meeting will be an opportunity for the public to hear factual information about the state’s COVID-19 vaccination plan, which will help Alaskans decide what’s best for themselves and their families,” said Senator David Wilson, chair of the Senate Health & Social Services Committee. “I would like to thank the department for preparing for the distribution of vaccines and for disseminating reliable information about them to the public. Their hard work is critical to re-opening our economy and putting this pandemic behind us.”

DHSS’ draft vaccination plan can be viewed at this link.

The hearing can be heard on the Alaska Legislature’s Livestream: http://akl.tv

Judicial Watch: Alaska has 11% too many registered voters

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 Judicial Watch says in its 2020 study of voter registration data that Alaska is among eight states with statewide voter registration rates exceeding 100% of those actually eligible to be registered to vote.

Alaska’s voter registration rate is listed at 111% by Judicial Watch.

According to the conservative watchdog group, 353 U.S. counties had 1.8 million more registered voters than eligible voting-age citizens.

In addition to Alaska having too many registered voters, the group named Colorado, Maine, Maryland, Michigan, New Jersey, Rhode Island, and Vermont.

The September 2020 study collected the most recent registration data posted online by the states themselves. This data was then compared to the Census Bureau’s most recent five-year population estimates, gathered by the American Community Survey (ACS) from 2014 through 2018. 

Must Read Alaska’s math is different from Judicial Watch’s math, but still shows a significant number of over-registrants.

According to the Division of Elections, Alaska has 598,737 registered voters as of Dec. 3, 2020. The U.S. Census says that 24.6% of Alaskans are under the age of 18, which would mean 551,585 Alaskans are of voting age, leaving over 47,150 excess voter registrations on the books in Alaska, or approximately 8.66 percent too many registered voters.

Don Young votes in favor of marijuana legalization

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The U.S. House of Representatives passed a bill Friday that would decriminalize marijuana, at least from federal law.

Alaska’s Congressman Don Young voted in favor of H.R. 3884, also called the Marijuana Opportunity Reinvestment and Expungement Act of 2018, or the MORE Act.

The MORE Act is also pending before the Senate, where it is not expected to pass. Among notable items in the bill, it would remove marijuana from the schedules of controlled substances under the Controlled Substances Act, legalizing several marijuana-related activities at the federal level.

The bill passed by a vote of 228 to 164. At least five Republicans voted for the bill and six Democrats voted against it.

For several years, Congressman Young has taken a more libertarian view of marijuana, and he serves as co-chair of the House Cannabis Caucus. He sees it as a states’ rights issue, especially because there are several states with varying degrees of legalization of the weed. Alaska has legalized commercial marijuana agriculture and trade, and it is today one of the few growing industries in Alaska.

Last year Young pushed for the passage H.R. 1595 – the Secure and Fair Enforcement (SAFE) Banking Act, to protect financial institutions serving cannabis businesses operating legally under state law from punitive federal actions. The SAFE Banking Act passed the House by a bipartisan vote of 321-103. It has been stalled in the Senate Banking Committee by Chairman Mike Crapo of Idaho, who has outlines numerous changes he wants made in the bill.

“I am a passionate supporter of a states’ rights approach to cannabis policy. For too long, the federal government has stood in the way of states that have acted to set their own cannabis policies,” said Congressman Young last year. “I have met with many constituents, including owners of small businesses in Alaska’s legal cannabis industry as well as state leaders of financial institutions.”

Lacy Wilcox, president of the Alaska Marijuana Industry Association, said the group is grateful for Congressman Young “for always having our back here.” The MORE Act could languish in the Senate, “but that doesn’t mean we give up,” she said, adding caution that there is a particular amendment that she is concerned about, relating to people who may have a prior marijuana conviction being prohibited from participating in the industry.

Change of heart? Anchorage acting mayor seeks to reallocate CARES funds

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DETAILS OF PLAN TO BE RELEASED FRIDAY

A measure will be introduced at a special Anchorage Assembly meeting scheduled for Friday, Dec. 4 to move already allocated CARES Act funds into different “buckets” that can be used to help residents of the city.

Acting Mayor Quinn-Davidson and members of the Anchorage Assembly announced on Thursday the measure to provide additional relief funding to businesses and residents, including housing assistance and grants to businesses, in light of the acting mayor’s devastating shut-down order that went into effect Tuesday, crushing local businesses, particularly restaurants and bars during their busy season.

The announcement by the Mayor’s Office made no mention of the $20 million in additional funds sent to the municipality by the governor, with a request from Gov. Mike Dunleavy that it be used to actually help people and businesses in need. Critics have said that the funds so far have not helped enough people in Anchorage, but have been used to prop up government jobs and build trails.

[Read: Governor provides additional CARES Act funds to Anchorage]

Assembly Resolution No. 2020-426, will be introduced and a public hearing and final vote will be set for next week.  

The $15,407,650 relief package would provide additional funding to several “oversubscribed” municipal economic relief programs, as follows: 

  • $7,400,000 for the Rental and Mortgage Assistance Program. This will allow the program to continue beyond December and into 2021. 
  • $6,407,650 for grants to small businesses impacted by the shutdown order, including restaurants, bars, and entertainment businesses. This amount is in addition to the approximately $7,000,000 remaining in the small business program fund, which will be deployed in the coming days, according to the Mayor’s press release. After passage next week, funds left to deploy to small businesses would total $13,407,650. 
  • $1 million for the municipal voucher program that provides individuals and families with vouchers for basic necessities such as groceries, medication, diapers, and gas. This will add to the existing $1,000,000 program, which Mayor Quinn-Davidson expects to be depleted this month.  
  • $600,000 for the United Way and Alaska Hospitality and Retailers Association Meals Program, which pays local restaurants to provide meals to families that are struggling to make ends meet. This funding will allow the existing program to continue beyond 2021. 

“We’ve spent the last week combing through each of the Muni programs to see what funds we could repurpose to get help to those who need it the most – and quickly,” said Acting Mayor Quinn-Davidson. “These funds are a good start, but not enough to carry our community through these next few months. We’re hopeful that Congress will act quickly to provide Alaskans the resources we need to weather this public health crisis.”  

The funding for the additional economic relief redirects dollars previously appropriated by the Anchorage Assembly.

The Anchorage Assembly previously set aside $12 million to meet the Federal Emergency Management Agency (FEMA) local match requirement for disaster funds in case the State of Alaska did not pay the match. The State of Alaska has committed to pay this match, so these funds are no longer needed for that purpose. The bulk of the remaining funds come from funds that were appropriated for “mental health crisis response,” which she said will now be funded by the alcohol tax.  

The Anchorage Assembly previously allocated over $88,000,000 for economic stimulus, the majority which has been spent on rent and mortgage relief and grants to businesses and nonprofits. The remaining relief dollars from that allocation will become available in the coming weeks, including $7 million more for small businesses, $7 million to tourism related businesses, $3 million for utility relief, and continued payments to child care providers.

Bill Satterberg: Alaska needs judicial selection reform now

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By WILLIAM R. SATTERBERG JR.

I have been practicing both civil and criminal law since 1976. For several years, I have been asked why I did not become a judge. There are numerous reasons.

One primary reason is because I have a serious skepticism over the current selection process used for judges in Alaska. While proponents claim it is solely a merit-based system, I dissent.

Selecting judges in Alaska involves a rather unique method. Interested candidates must first submit their names to the Alaska Judicial Council. The Council is made up of six members drawn three each from the public and the legal profession with a tie breaking seventh member being the Chief Justice of the Alaska Supreme Court.

As designed, the Judicial Council was intended to be an organization which would vet candidates who had applied for judgeship. After engaging in this vetting process, the Council would then forward names which the Council voted as acceptable potential judges to the governor, who would then appoint a judge only from that list of approved Judicial Council candidates. Regretfully, the system does not work as intended.

In 1990, I was a campaign coordinator for then-to-be Gov. Walter J. Hickel, who ran on Joe Vogler’s Independence Party ticket. After the governor had been elected, I was encouraged to apply for a judgeship.

I answered that the likelihood of me ever getting an appointment was dismal. After all, I did not have the experience at the time, having only been practicing for 14 years. In addition, my self-esteem had always suffered. A timid person by nature, I did not want to see the results of the required Bar Polls.

One staffer suggested that I should still submit my name. If my name did not get referred from the Judicial Council, he said the administration could simply keep rejecting names until mine eventually showed up.

Although that is not how the selection process actually works, I still was flattered. However, I did not believe in participating in such a charade. I declined. Which brings me to my personal opinions to follow.

Alaska’s Judicial Council has become a politicized organization in many respects. Presumably, the Council objectively analyzes the qualifications of various candidates, investigates backgrounds, conducts impartial interviews, and then forwards “the most qualified” candidates to the governor. The governor’s obligation is to then pick a candidate only from that list. No latitude is allowed. But, the process does not start there.

Rather, even before prospective candidates are reviewed by the Judicial Council, they must first submit to the “Bar Poll.” The Bar Poll is supposed to be candid evaluations of the candidates by fellow legal practitioners, who must sign a statement that they intend to be truthful in their evaluations.

In practice however, the Bar Poll is often an opportunity for answering attorneys to take shots at any applicant that they may dislike. For years, the Bar Poll has been slightly more than a sophisticated blog, long before blogs became commonplace. And, to make the insults even worse, respondents can submit their comments anonymously. Because disclosing one’s name is optional, the Bar Poll has very little practical credibility.

The considerations which go into evaluating attorneys for potential judgeship as expressed in the Bar Poll often have nothing to do with the qualifications of the candidate. To the contrary, Bar Poll responses are often calculated to take advantage of geographical location, gender, and other political considerations.

Traditionally, the perception is that Anchorage votes against Fairbanks candidates, and Fairbanks votes against Anchorage candidates. No one knows what Southeast Alaska does. And it goes on – Prosecutors vote for prosecutors. Defenders vote for defenders, etc.

Recognizing valid concerns about the peer group evaluation process, the Bar Poll attempted to do away with politics several years ago by requiring attorneys to certify that they would answer the poll honestly. Of course! (As long as one does not have to disclose his/her name.)

In one sense, the Bar Poll does serve a purpose. Quite often, the Bar Poll weeds out those who simply are disgusted with the process and who finally accept that they stand no realistic chance of ever gaining sufficient peer-group support. More than one attorney has pulled their name after recognizing that the results in the Bar Poll were abysmal. Sensitive egos.

After the Bar Poll, the names are forwarded to the Judicial Council for evaluation by the seven-member committee.

I recall one instance when only two names were sent to the governor for a position on the Fairbanks Superior Court. Although both candidates were well qualified, I still was disappointed that more names had not been sent to the governor. When I complained, I was reminded that Fairbanks lacked female judges.

The Judicial Council had apparently decided that it would remedy the gender gap by giving the governor only two female picks.  I asked one of the male individuals who, in my opinion, was also well qualified for the judgeship why he did not get selected. He answered that the bulk of questioning before the Judicial Council had centered upon why women were not invited to his men’s-only poker party.

Why any such question would have any relevancy to the person’s qualifications for judgeship was beyond me, since I had never been invited either. Nevertheless, it appeared that this was a focus of the process. Clearly, he should have folded early on.

More recently, in an act of outright defiance, the Judicial Council found only one candidate to be qualified for an opening. Since our Constitution says the governor is entitled to at least two names, the Council chose to send no names to the governor for this much-needed Fairbanks district court judgeship, thus frustrating the appointment process entirely. The one qualified candidate was certainly well suited for the appointment. But so were several others. The decision was clearly political.

Assuming that an attorney has actually survived the Bar Poll hazing and the Judicial Council interrogation, his or her name then is passed on to the governor if favored by a majority vote of the Council.

The governor can only interview the candidates forwarded by the Judicial Council After the interviews, the governor must appoint the successful candidate within 45 days. No exceptions or extensions of time, lest the governor risk a recall movement. But it is again submitted that the candidates the governor must choose from are selected often via popularity and politics, and not just merit. This can lead to partisan judges, which politicizes the Alaska judicial system, skewing the third, presumably impartial, branch of government.

I have laid out some of the problems with Alaska’s judicial selection process. There are a variety of reforms that could improve it. Some are complicated. But the easiest would make our process more like the federal evaluation process. The Judicial Council would be required to send the names of all applying candidates to the governor. However, the Judicial Council would first do its due diligence in thoroughly investigating applicants’ backgrounds, laying that information out clearly, and passing it all along to the Governor and to the public it serves.

Most importantly, the Judicial Council would not place itself in the position of deciding in advance who gets the appointment and who does not by sending up only the names that the Council prefers. Rather, it is the governor’s decision to make the appointment.

It’s time for Alaska to stop the funny business. Our judicial selection process needs to be reformed. Alaskans deserve not only nonpartisan judges, but also the best quality ones. The Council will still serve a very valuable purpose which would be to thoroughly screen candidates. The Council would then make full disclosure to the governor and the public of their opinions and evaluations of these candidates.

Ultimately, it would be the governor who would make the decision based on the names of all candidates who have applied for a position and not the Council by effectively tying the governor’s hands or giving the Governor the proverbial unacceptable Hobson’s choice.

The governor’s selection would then be subject to confirmation by the state legislature, similar to how the federal system has effectively worked for years. Most importantly, it would remove the politicization of the Alaska Judicial Council which currently exists. Serious change is needed if the judicial selection system is going to have integrity as opposed to being just another political tool. The change will require an amendment to Alaska’s Constitution.

But it is long overdue.

William R. Satterberg, Jr., is an attorney in Fairbanks, Alaska. His practice has been an active litigation firm in Alaska since 1982. Bill worked as an Assistant Attorney General for the State of Alaska from 1976 to 1980. This opinion was first published by the Alaska Policy Forum.