While the heated battle over whether Ballot Measure 1 is a boon or bane to Alaska and its natural resources rages on unabated, we find ourselves wondering about the process that put it on the ballot in the first place.
The complicated salmon habitat ballot measure began life as an initiative, and, frankly, we are underwhelmed at how either side of the issue has presented its arguments. It is either a way to save Alaska’s salmon or destroy its economy, depending on who you listen to. Like most initiatives, this one serves Outside special interests.
Ballot initiatives seem all the rage among the uninformed who believe they are enhancing the notion of direct democracy by settling issues on the ballot and without a legislative process, but they present a real danger. They are, in essence, convenient back doors for monied special interests to artfully push their aims, neatly sidestepping pesky governmental checks and balances to avoid the fuss and muss of the legislative process. No vetting. No oversight. No public hearings. Certainly no discussion of consequences.
The recent deaths of the liberal lions Judge Stephen Reinhardt this year and Judge Harry Pregerson in 2017 has given Trump an opportunity to move the court more toward the center. Both of those judges were President Jimmy Carter appointments and were considered among the most left-leaning judges in the nation. A third judge, Judge Alex Kozinski, was conservative and was a President Ronald Reagan appointment, but retired last December, creating a third vacancy from California.
The Ninth Circuit has 29 judgeships, and with these three vacancies there are seven open seats total.
Previous to the nominations of earlier this week, Trump had nominated Bridget Bade, Eric Miller, and Ryan Nelson. He has one more nomination to make for this court. But these all will be bruising nomination battles, if history is any judge.
Currently, it is nearly impossible for conservatives to argue before the court and have any Republican-appointed judges on the panel. And the Ninth Circuit is known to have many cases reversed by the U.S. Supreme Court, earning it the nickname “The Nutty Ninth.” (About 78 percent of the cases appealed from the Ninth to the Supreme Court are reversed.)
All three who were nominated this week are considered conservatives, are from California and are members of the conservative Federalist Society.
Patrick Bumatay
Bumatay, 40 is with the U.S. Attorney’s Office for the Southern District of California, but his assignment is as counselor to the U.S. Attorney General’s office in Washington, D.C. He has a bachelor’s degree from Yale University and a law degree from Harvard University, where he was the articles editor for the Harvard Journal of Law & Public Policy, a publication seated in conservative and libertarian legal scholarship. He clerked for Judge Timothy M. Tymkovich, U.S. Court of Appeals for the Tenth Circuit , and Judge Sandra Townes, U.S. District Court for the Eastern District of New York.
Bumatay is a member of the Federal Bar Association, the National Asian Pacific American Bar Association, and the National Asian Pacific Islander Prosecutors Association.
His resume is extensive, including Counselor to the Attorney General, Office of the Attorney General, U.S. Department of Justice, Senior Counsel to the Deputy Attorney General, Office of the Deputy Attorney General, U.S. Department of Justice (Washington, D.C.), Counsel, Office of Legal Policy, U.S. Department of Justice (Washington, D.C.), Assistant U.S. Attorney, U.S. Attorney’s Office for the Southern District of California (San Diego, CA), Associate, Morvillo Abramowitz Grand Iason Anello & Bohrer, P.C.(NYC), and Counsel, Associate Attorney General, Office of the Associate Attorney General, U.S. Department of Justice (Washington, D.C.).
As a federal prosecutor, he has worked on organized crime and narcotics cases for the U.S. Attorney’s Office in San Diego, and has argued before Ninth Circuit Court of Appeals. He currently advises the U.S. Attorney General on national opioid strategy, transnational organized crime, prisoner and reentry policies, and other criminal matters.
Bumatay assisted curing the confirmations of Chief Justice John Roberts, Justice Samuel Alito, Justice Neil Gorsuch, and Attorney General Michael Mukasey. Bumatay comes from a Filipino heritage.
Bumatay would also be the nation’s second openly gay federal appeals court judge and the first on the Ninth Circuit.
Kenneth Lee
Kenneth Lee, 43, is a partner, Jenner & Block LLP, a Los Angeles law firm. A graduate of Cornell University, he has a law degree from Harvard University.
He clerked for Judge Emilio Garza, U.S. Court of Appeals for the Fifth Circuit. From 2006-2009, he was associate counsel to the President. While at the White House Counsel’s Office, he represented the White House in congressional and provided the president and senior White House officials advice on a wide range of legal issues.
Lee has represented numerous consumer class action lawsuits over the years, representing companies in a variety of industries. He has argued appeals before the Second, Fifth, and the Ninth Circuit.
Lee is active in pro bono work for the poor, indigent, and prisoners, with a focus on constitutional rights. The Federalist Society lists him as an expert on topics food and drug law, class actions, and the constitutionality of the Affordable Care Act.
Daniel Collins
Daniel Collins, 55, is a partner at Munger, Tolles & Olson LLP, a Los Angeles law firm. He earned a bachelor’s degree fro Harvard University and his law degree from Stanford Law School.
Collins clerked for Judge Dorothy Nelson, U.S. Court of Appeals for the Ninth Circuit, and the late Justice Antonin Scalia, of the U.S. Supreme Court.
He was Associate Deputy Attorney General, Office of the Deputy Attorney General, U.S. Department of Justice (Washington, D.C.); Assistant U.S. Attorney, U.S. Attorney’s Office for the Central District of California; and Attorney-Advisor, Office of Legal Counsel, U.S. Department of Justice (Washington, D.C.).
As a federal prosecutor, he tried more than 60 cases, including eight jury trials. He has argued 36 cases before the Ninth Circuit, four cases in the California Supreme Court, and at least one case before the International Court of Justice in The Hague.
One way to quickly make Alaska Psychiatric Institute safer for both staff and patients?
Shut down dozens of beds in the hospital, drop patient capacity to half, and send violent mentally ill people to jail.
That’s what happened in the past few weeks, and the Alaska Correctional Officers Association is concerned.
According to the union, the Department of Corrections announced it would begin incarcerating the mental health patients who are referred to and who currently reside at API. The announcement wasn’t made to corrections officers, however.
“Alaskans who believed their loved ones were getting the care they needed are now being treated as criminals by Governor Walker and Commissioner Dean Williams,” the group’s press release says, taking a direct shot at the governor and the Corrections commissioner.
ACOA says against the wishes and safety concerns of corrections officers, the state has relabeled mentally ill patients as “Title 47 mental health “holds.” That allows the state to send these mentally ill people to prison indefinitely.
Correctional officers say they are not trained to deal with violent mentally ill people, and because they are not criminals, these inmates cannot be kept with other inmates. They must be placed in segregation cells, full mental health units, or just left in booking areas.
“How is DOC going to keep these vulnerable mental health patients safe in this environment?” ACOA asks.
But for API, the situation has become even more dire than when a scathing report came out several weeks ago that said the facility was unsafe.
When there’s no bed available at API, patients are often left in emergency rooms, but local Anchorage hospitals are drowning in psychiatric patients they are holding because there’s nowhere for them to go.
What concerns corrections officers the most is that they were not told that psychiatric patients were heading to their facilities. Two are at the Anchorage jail, and one is at Hiland Mountain Correctional Center.
A memo from the DOC Health and Rehabilitation Services Director Laura Brooks outlined how the Title 47 would work.
“Due to staffing and safety concerns, API is shutting down units in the hospital which will drop their bed capacity to approximately 36 (from their usual 78). These units will remain closed until they can bring their staffing up to a safe level; there is no reopen date at this time. Per statute, when someone is waiting on commitment to API but there are no open beds, the individual may be held at a local hospital or correctional facility —this is very similar to the Title 47 alcohol holds we are all familiar with. The primary difference is that the T47 alcohol holds expire after 12 hours but there is no time limit for a T47 MH [Mental Health] hold. With bed space at API extremely limited, and local hospitals resistant to taking T47 holds, we can expect many of these individuals who are awaiting API commitment to end up in our facilities. I do not know how many T47 MH detainees we will see or how long they may remain with us.”
Brooks also gave staff detailed instructions on how T47 patients were to be evaluated and treated, which included outlining their right to access to mental health services and medications.
“This is new to all of us so please be patient as we work through a new process,” Brooks wrote.
The Department of Corrections is experiencing management turnover. While Williams is commissioner, he has an acting Director of Institutions, an Acting Deputy Director, and an Acting Chief of Time Accounting Officer, all key roles.
The appointment of Dean Williams as Commissioner of the Department of Corrections in 2016 was fraught from the beginning. The ACOA union was upset that Williams had written a report critical of officers filled with what they said were false narratives. They issued a press release in 2016 saying that Williams was putting the entire inmate population at risk, and that he had created an opening for himself to become commissioner.
Schneider tackled a 25-year-old woman, tried to strangle her, said he was going to kill her. She lost consciousness believing that. When she came to, he’d ejaculated on her face and hair. He said he wasn’t going to kill her, he had needed her to think that to sexually gratify himself. Then he drove to his job as an air traffic controller.
The woman did everything right. She called 911 and went to the hospital. Detective Brett Sarber said she was so traumatized she could barely speak. But she did. The detective did everything right. He got her to trust and talk to him, gathered physical evidence, filed charges and Schneider was quickly arrested.
The things I can’t reconcile are the apparent lack of support for the victim and Schneider’s sentence.
Three days after the assault, she appeared telephonically at a bail hearing. She opposed releasing Schneider to his wife’s supervision, an ankle monitor, and a $30,000 performance bond, saying she feared for her safety. The prosecution agreed with the arrangement. Schneider got to go home. The victim had to live in fear. She testified at grand jury shortly after this. That was the last time records show she appeared in the case.
Over a year later, the prosecutor said he tried to reach her by phone for the sentencing. He said he would have had to send a detective to contact her. He should have. The investigators who handle these cases are dedicated. I believe Detective Sarber, who she trusted, would have gladly contacted her and offered to accompany her to the sentencing. I believe he would have done the same for a trial.
The Department of Law’s website describes Victim-Witness Coordinators. Their job is to stay in touch with victims, answer their questions, provide support and connect them with services. I relied on the ones I worked with immensely. I’ve seen no mention of their role with this victim.
Schneider was sentenced to two years with one suspended and credit for time on “house” arrest. No jail time to serve. The prosecutor agreed to this. He said the sentencing range for Schneider’s offense, given his lack of criminal history was, zero to two years. That’s partially true.
What wasn’t said is he could’ve filed statutory aggravators and argued they should significantly increase that range. Schneider’s case warranted two statutory aggravators:
His conduct manifested deliberate cruelty.
It was among the most serious included in the definition of the offense.
Schneider’s conduct was sadistic. It was about power, terror and degradation. The assault Schneider pleaded to can include bruising someone with a broom handle. The victim in this case might’ve died.
The prosecutor said he agreed to no jail time so Schneider would agree to sex-offender treatment, which couldn’t otherwise be ordered since he wasn’t convicted of a sex crime. I’m for treatment. But not to the extent it gets leveraged for no jail time. Deterrence can be effective, too.
More just would have been no agreement by prosecutors on the sentence. They could have argued the statutory aggravators called for significant jail time, letting defense counsel argue the defendant would voluntarily get treatment in exchange for some leniency.
The judge didn’t have to accept the sentence the parties proposed. He could have rejected it as too lenient, which would have entitled Schneider to withdraw his plea. The prosecutor would have then been negotiating with the leverage that the court was not going to accept no jail. The judge could’ve deferred sentencing and ordered a pre-sentence report.
Alaska law requires judges balance certain factors in sentencing. They include:
Defendant’s potential for rehabilitation
Seriousness of the offense
Harm done to the victim
Need to deter the defendant and others
Community condemnation
Restoration of the victim and community.
In KTVA’s footage of the judge’s remarks, he said it was clear the primary goal of the agreement was to facilitate Schneider’s rehabilitation. He embraced this. He brushed off deterrence of Schneider, saying he didn’t know what could be done to deter him. (That’s frightening. A pre-sentence report might’ve provided some insight.) He made no mention of deterring others. For community condemnation, he spoke of forgiveness.
There was no mention of the victim or her harm. The courtroom of white-collar professionals, including the defendant, all placed more value on the defendant’s possible future than the victim’s and what she had already suffered. If I, a professional with self-advocacy skills and status impacted by my trauma, were the victim, I suspect the sentence would’ve been different.
The prosecutor said the defendant losing his job was like a life sentence. It wasn’t. It was a collateral consequence of his criminal conduct. But to a prosecutor and judge, loss of their professional status and livelihood is terrible to contemplate. Both men identified with that more than the woman’s loss. She didn’t have socio-economic status. She was a 25-year-old Alaska Native woman without stable housing. She depended on the prosecution and the court to stand up for her.
To the victim, I’m sorry. You deserved better. Perhaps we will become better for your courage.
Val Van Brocklin is a former state and federal prosecutor in Alaska who now trains and writes nationally and internationally on criminal justice, leadership, and ethics.
National Education Association-Alaska, the powerful teachers union, is spending $50,000 to oppose gubernatorial candidate Mike Dunleavy, through a group it formed called Educators Against Dunleavy, which shares the same Main Street address as the NEA in Juneau.
With that $50,000, the group purchased $30,000 worth of digital advertising at ADN.com, going negative against Dunleavy. The remainder of the $20,000 went to the ad agency, Rising Tide Communications.
Why would the National Education Association oppose the first Alaska governor who comes from the public school community, and whose entire career was as a public school teacher and administrator — and a rural educator, at that? And the only gubernatorial candidate hopeful who has lived in the Arctic?
Mike Dunleavy when he was a public school teacher in Kotzebue.
TEACHERS, PARA-EDUCATORS, SECRETARIES, AND JANITORS HAVE A CHOICE
Educators who disagree with the NEA-Alaska’s position on this race are now free to withhold their dues, which are going to oppose a rural school teacher who spent six years teaching in Koyuk and several years in Kotzebue. After seeing how the math works on the $50,000 spend against one of their own, they may want to decide to send their contributions to candidates themselves — or not.
Subsequent to the Janus decision by the Supreme Court, public employees can easily opt out of their union dues, and no longer even have to pay the “agency fee.” To do so, send or deliver a letter to your school district payroll department saying you no longer wish to have union dues taken from your paycheck. The human resources department is required to honor your wishes without causing you any additional steps. Keep a copy of your letter.
If you get pushback from your district human resources department, the Alaska Policy Forum has legal resources to help you enforce your rights.
POP QUIZ – DO THE MATH – IS NEA SPENDING YOUR DUES WISELY?
Story problem: For every dollar that NEA-Alaska spent opposing Mike Dunleavy through Educators Against Dunleavy, how much of it was used for ads vs. being siphoned by the ad agency?
(Extra points for those who figure out this is the same percentage that gets siphoned off in administrative costs in our public education system. Your answer must be turned in by Nov. 6.)
A 24-hour Must Read Alaska poll conducted on Facebook this week shows that 11 percent of participants consider climate change an important topic to them as they head to the polls in November.
The poll was not scientific, and the Must Read Alaska audience on Facebook skews conservative. 758 people participated in the poll, and 60 people left comments, most of them revealing they have little use for current climate change politics.
“Money wasted on climate change is an issue, but not climate change itself. I’m old enough to remember when they were trying to scare us with a coming ‘ice age.’ That didn’t really work out so they started trying to scare us with ‘global warming.’ … Now it’s ‘climate change.’ Yes, the climate has been changing and going through cycles for thousands of years…” wrote one respondent.
A poll done by Yale University’s Program on Climate Change Communication earlier this year revealed more detailed and vastly different results:
Most registered voters (73%) think global warming is happening, including 95% of liberal Democrats, 88% of moderate/conservative Democrats and 68% of liberal/moderate Republicans, but only 40% of conservative Republicans.
A majority of registered voters (59%) think global warming is caused mostly by human activities, including 84% of liberal Democrats, 70% of moderate/conservative Democrats, and 55% of liberal/moderate Republicans (14 percentage points higher than in October 2017), but only 26% of conservative Republicans.
A majority of registered voters (63%) are worried about global warming, including 88% of liberal Democrats, 76% of moderate/conservative Democrats, and 58% of liberal/moderate Republicans, but only 30% of conservative Republicans. Worry about global warming has increased among liberal/moderate Republicans by 15 percentage points since May 2017 and by seven points among conservative Republicans since October 2017.
In an effort to improve his odds for re-election, Gov. Bill Walker is preparing to apologize to Alaska Natives.
The apology is, Must Read Alaska has learned, being queued up for the Alaska Federation of Natives convention, Oct. 18-20 in Anchorage.
The AFN convention attracts as many as 6,000 Alaska Natives to Anchorage during the days leading up to the midterm General Election, and all three candidates for governor typically speak at the convention. It can be influential: AFN in 2014 endorsed Walker and his running mate Byron Mallott, giving them needed momentum to win against the incumbent Sean Parnell. They won by 6,223 votes.
During his time at the podium, Walker is likely to have Lt. Gov. Mallott with him, and discuss how they are directing the Department of Law to join a legal challenge to a court decision involving the adoption of American Indian and Alaska Native children into non-Native homes.
Last week he signaled that after a federal judge ruled the Indian Child Welfare Act unconstitutional, Walker’s administration would continue to fight that decision:
“There is nothing more important to Alaskans than the well-being of our children. Lieutenant Governor Byron Mallott and I continue to stand with Alaska Tribes in supporting the Indian Child Welfare Act,” Walker said.
That case will be appealed to the U.S. Supreme Court, where Justice Brett Kavanaugh is now one of the conservative majority. Walker vociferously opposed the Kavanaugh confirmation to the Supreme Court, saying he would not rule in favor of Alaska Natives.
“Mr. Kavanaugh’s appointment could also jeopardize the Indian Child Welfare Act, Alaska Native Claims Settlement Act, and other laws that enable tribal self-determination due to his overly narrow view of the relationship between federal and tribal governments,” Walker said in September.
Critics pondered that Walker was treating the Supreme Court as if it was merely another legislative body, rather than one that weighs laws and government actions as they pertain to the U.S. Constitution.
There is recent precedent for the anticipated apology. President Barack Obama signed one in 2010: The Native American Apology Resolution.
At the time, tribal citizens criticized Obama because the apology was not fulsome. He neither announced it, nor issued it verbally, they said. They found it lacking.
That apology was introduced as a congressional resolution by Republican Sen. Sam Brownback of Kansas, “to officially apologize for the past ill-conceived policies by the U.S. government toward the Native peoples of this land and re-affirm our commitment toward healing our nation’s wounds and working toward establishing better relationships rooted in reconciliation.”
The bill passed the Senate in 2008 and 2009, but the version signed by Obama was different, a bit watered down. He apologized: “on behalf of the people of the United States to all Native peoples for the many instances of violence, maltreatment, and neglect inflicted on Native peoples by citizens of the United States.”
But Obama’s apology didn’t authorize legal claims against the United States, nor reparations, nor did it settle any existing claims.
Walker’s apology will surely deal with some of these issues specific to Alaska — Native adoptions, historic mistreatment, and institutional racism — but will it go so far as to make specific promises on behalf of the State of Alaska? That is the million-dollar question.
On Sept. 23, Walker signed Administrative Order 300, recognizing a linguistic emergency for Alaska Native languages. During recent weeks, he has made Native issues the center of his official and campaign activities.
Alaska Natives may be somewhat split on their support of Walker-Mallott. After all, many are supporters of Mike Dunleavy, whose wife and children are Alaska Inupiaq, born and raised in Kotzebue. Dunleavy taught school in the rural Arctic village of Koyuk and also in Kotzebue.
Dunleavy would become the first governor of Alaska who has actually lived above the Arctic Circle, something that gives him “street cred” in rural Alaska.
Others support Mark Begich, the Democrat running for governor. Begich just won the endorsement of Emil Notti, a Native elder and the first president of AFN.
Walker is on an apology tour — promising the tourism industry $12 million in marketing funds for next year, and promising he will focus, at last, on public safety.
Next week, he’ll apologize to 20 percent of Alaskans on behalf of the State of Alaska, searching for the Native Alaska vote that can make or break his campaign.
For the past several weeks Walker has not focused on the gasline, which was his signature project for his administration.
Instead he has populated both his official Facebook page, and his campaign Facebook page with a series of postings aimed at the Alaska Native community.
IS IT AN APOLOGY WHEN THERE IS POLITICAL GAIN INVOLVED?
One of the most sincere apologies in history was issued without a word: Chancellor Willie Brandt of Germany fell to his knees to demonstrate his sincere apology to the Jews of Europe for what happened to them during World War II, when there was no political gain to be made.
That event took place on Dec. 7, 1970, when Brandt laid a wreath at a monument to the German occupation-era Warsaw Ghetto Uprising. He then knelt and remained kneeled.
Walker’s apology, if he proceeds with it, would be among the more cynical and insulting, coming just two weeks before a major election in which Walker has so much at stake. It’s correlation to the political timetable would cheapen it.
An ironic “quitter” theme has emerged from the Walker-Mallott camp, via social media.
The group calling itself “Unite Alaska for Walker-Mallott” may be hurting its own candidates, because when it comes to quitting public service, Walker-Mallott is a target-rich environment.
Bill Walker quit as mayor of Valdez. He lasted less than a year, because he wanted to go to law school and start suing oil companies. He made millions doing that, enough to finance his campaign for governor in 2010.
Lt. Gov. Byron Mallott quit being mayor of Juneau after four months because he received a lucrative job offer.
Walker quit the Republican Party in 2014, after he ran in 2010 but failed to win the primary for governor.
Mallott won the Democratic primary for governor in 2014, but he then quit a month later to run as a petition candidate for lieutenant governor.
In 2018, when the two looked at running for reelection, they chose the Democrat Party ticket, until Mark Begich appeared on the scene.
Then they quit the Democrats and ran as petition candidates in the General Election.
To be fair, at least one thing Walker quit could be viewed as a plus: After becoming governor, he quit suing the State of Alaska over Point Thomson, where a state settlement had led to the development of a huge oil and gas field.
Instead of tying up State dollars fighting Bill Walker in court, Alaska has seen 10,000 barrels of taxable energy per day going into the Trans Alaska Pipeline, adding revenue to the State’s budget at a time when it’s sorely needed.
And that’s a positive, as long as you don’t count giving that “sue-the-state” law practice to his prime supporter, anti-oil attorney Robin Brena — who is the one funding the group that is calling a public school teacher from Koyuk a “quitter.”
Cook’s Political Report, Inside Elections, and Larry Sabato’s Crystal Ball all put Congressman Don Young in the “likely win” category for the U.S. House. Don Young has been winning that seat since 1973.
And yet, according to Anchorage-based pollster Ivan Moore, Alyse Galvin, running as a Democrat, is within four points of Young.
The mainstream media gave that poll credence, so Must Read Alaska looked into it.
Can that number be trusted?
Galvin won 19,650 votes in her Democrat primary in August. That’s 2,671 more than Steve Lindbeck won in 2016.
But Young received 44,247 in his primary, a gain of 5,269 from his 2016 primary race votes. Young did better than Galvin by double in that measurement.
The Primary Election includes a closed ballot for Republicans, which means that many voters who like Congressman Young did not vote for him in August because they voted the Democrats’ open ballot.
However, in November, any voter can vote for Galvin or Young. Young has always enjoyed the support of Democrats in rural Alaska, as well as working class urban Alaskans who register Democrat. He has a lot of union support, too.
Then there are the Nonpartisans and Undeclareds — the N and the P voters. Will they go with Galvin or Young? Those are the swing voters that make polling difficult in Alaska. Nonpartisans typically vote Democrat, while Undeclareds typically split for conservative candidates, if they vote at all.
FiveThirtyEight.com says Young has a 75 percent chance of winning. That Nat Silver number is based on two Ivan Moore polls and one Lake Research Partners poll. Lake Research polls for Democrats, and is working for Galvin’s campaign. Ivan Moore works for Democrats as well, and generally polls for Jim Lottsfeldt, the partisan strategist used by Democrats in Alaska.
Yet even the aggregate of those polls show Young winning:
THE DEMOCRATS’ PROPAGANDA MACHINE
Why is the Ivan Moore poll interesting to politicos? Why did mainstream media bite on a partisan poll?
The Democratic Congressional Coordinating Committee hasn’t put money into the Galvin campaign yet, but a close poll could lure in the money. This is partly propaganda, then, that liberal pollsters are peddling on behalf of Galvin, who is likely not even close to 44.9 percent, if her Primary numbers are to be used as a gauge of the one polling that matters — the election.
