Refuse to recuse? Chief Justice Bolger was material witness, deeply entwined in recall question - Must Read Alaska
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Saturday, April 4, 2020
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Refuse to recuse? Chief Justice Bolger was material witness, deeply entwined in recall question

Supreme Court Chief Justice Joel Bolger has refused to recuse himself from the Recall Dunleavy case, scheduled for March 25, even though he is a material witness to the first of the recall “charges” made by the Recall Dunleavy Committee, and even though he has publicly weighed in with his criticism of the governor on another one of the recall “charges.”

That first charge relates to the appointment of a judge to the Palmer District Court in 2019. The Alaska Judicial Council, which is led by Bolger, had forwarded just two candidates’ names to Gov. Mike Dunleavy, and the governor wanted to know why so few names had been forwarded — were that few candidates actually qualified?

The two met on March 26, 2019, in a private meeting in which Bolger and Dunleavy 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.

“I believe the governor’s office does not understand the constitutional requirements for these nominations,” Bolger said, before his meeting with the governor. “So I’m going to spend some time outlining the requirements of the constitution and the bylaws and procedures the council has adopted to follow the constitution.”

The meeting was lengthy and detailed.

A few days after that meeting with Bolger, Dunleavy appointed someone to the position from the “list of two,” fulfilling the vacancy as prescribed by the Alaska constitution, but a few days past when the Alaska statute says the appointment should be made.

During this time, the retiring judge in Palmer was still on the bench, and would not be leaving for several weeks. There was no vacancy yet.

The delay in the appointment is the first charge on the recall petition, which Bolger and the other Supreme Court judges says must be printed and distributed for signatures. Recall Dunleavy Committee says the governor broke the law by missing the statutory deadline.

There’s no putting the toothpaste back in the tube on this conflict — Bolger was at the center of the discussion about the judicial council’s decision that Dunleavy was questioning.

Bolger has yet another conflict with one of the recall “charges.”

At the Alaska Federation of Natives convention last year, he asked the assembly present to help him:

“It’s absolutely essential that judges maintain independence to make decisions based on the law and facts and not on political or personal considerations,” Bolger said in October 2019.

“We are facing a great deal of political pressure. Some people want to make the judicial selection system more political. Others would like to impose political consequences for the content of judicial decisions.

“So I respectfully ask this convention to join me in resisting political influence in our courts.” – Justice Joel Bolger to Alaska Federation of Natives, referring to Dunleavy

The message had been sent by Bolger. There was no question Bolger was referring to the governor in his remarks to AFN.

The governor had cut the Supreme Court’s administrative budget, and stated that he did so because the Supreme Court insisted the state pay for optional abortions with Medicaid funds. The governor was going to shift those funds from the courts over to the Medicaid accounts to pay for the mandate.

This makes Bolger deeply conflicted on the third recall “charge.”

Today, the Stand Tall With Mike group, which was defending the governor in court, withdrew from the case at the Supreme Court, in part because it appears the judges have already made up their minds, and because Bolger refused to recuse himself. The state attorneys will have to continue on without the independent legal team.

[Read: The fix is in II: Stand Tall With Mike pulls away from lawsuit]

It’s important to note that no formal request was made to ask Bolger to recuse himself. Normally, lawyers who are getting ready to appear before a judge do not make such a request because if the judge thinks he or she should recuse himself, he or she does so “sua sponte,” which means you do something without having to be asked.

But if a lawyer goes so far as to ask a judge to recuse himself, the lawyer can be guaranteed to have a rough time in front of what is then going to be an annoyed judge. Lawyers do not poke that hornet’s nest except in very rare cases.

Chief Justice Bolger has undeniable direct involvement with Recall Charge No. 1, and he has made political statements about Recall Charge No. 3. But voters have little recourse — Bolger himself will not be up for retention for six more years.

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Suzanne Downing had careers in business and journalism before serving as the Director of Faith and Community-based Initiatives for Florida Gov. Jeb Bush and returning to Alaska to serve as speechwriter for Gov. Sean Parnell. Born on the Oregon coast, she moved to Alaska in 1969.

Latest comments

  • Actually, lawyers can strike a judge’s participation on a case, one time, if made timely. But here, this is the Chief of the AK Supreme Court. Bolger is political and showing his hand openly. Multiple grievances should be filed with the AK Bar Association, for alleged judicial misconduct by Bolger. This would be the starting point, to get the complaint on the books. The ABA is run by Lefties, so don’t expect much. But you have to start somewhere.

    • “Actually, lawyers can strike a judge’s participation on a case, one time, if made timely.”

      That is my understanding as well. If anyone involved in a case wants a new judge, they can ask for one. Although, one would think that the judge would have recused himself since he should understand the conflict involved.

      • Bolger is desperate to aid and abet his fellow Democrat recallers. If he did recuse himself, and help himself ethically, he would be viewed as a traitor to his political party. Thank you, MRAK for pointing this out. Multiple grievances should be filed with the State Bar for misconduct by Bolger. And, any registered Alaska voter can file a grievance with the ABA. Go online to file.

  • Another corrupt crony of the Alaska Judicial Council. Time for a reset.

  • It’s time we make a change in our Constitution so We, the People elect Supreme Court justices in our state. Today, they are selected by the Alaska Bar Association.

    Judges MUST be accountable to the people. Not the Bar.

  • Well, it appears there is more than one hit man by the name of Bolger. It took decades for Whitey Bolger to be held accountable. Since this one is a part of the “system” he may never be held accountable. Like I said before, just because its not prosecutable (at this time) does not mean it isn’t criminal.

  • Bolger is disgusting and a disgrace. Out the door he should go!

  • Better to cut his losses rather than allow this Supreme Court to make some bad case law. Which they appear more than willing to do.

  • The judicial branch owes no loyalty to the Governor.
    These justices are appointed to hear cases and make fair non partisan decisions based on the constitution and existing laws.
    Claiming that someone should step down due to past criticism is the exact problem that has gotten this administration into a corner in the first place.
    This is not the “Iron Curtain” in AK…our leaders cannot just demand blind loyalty oaths to maintain a state job.

  • No wonder Justice Stowers is exiting the Supreme Court. It’s even gotten too weird for him. The Supremes are out of control, and the public knows it.

  • Bolger is knee-deep in this suit. As such, he is patently incapable of making a “ fair non partisan decision based on the constitution and existing laws”.

    The judicial branch continues to degrade citizens’ trust in their ability to be impartial.

  • One more proof that our court system is unconstitutional. This is like Red China with a different name. Anyone been studying yet what a “Constitutional Republic” stands for?? That is what America was founded on at the Constitutional Convention in 1787. Not a Democracy which James Madison, known as the Father of our Constitution said ” Is as short in its life as it is violent in its end”. Seymour Marvin Mills Jr. sui juris

  • Interesting how far afield Suzanne can get when she doesn’t know what she is talking about.
    1)Appointment of a judge to Palmer District Court. Two names were submitted by the Alaska Judicial Council. Dunleavy apparently didn’t like them, for some reason. Wanted more names? Not his call. He had to choose from those two, but didn’t. If it were intentional, then he broke the law as prescribed for appointing judges. If not, well, then he’s just not too bright for letting this go past the time line. What’s he going to do when an really serious issue comes up, like figuring out how to run the state, if he can’t make a simple decision within the time limit? Judge Bolger was pointing out to Dunleavy that there are statutory requirements for certain governmental actions. This was doing Dunleavy a favor. If he chose not to adhere to them, that’s on him. And, again, not too bright. The fact that the bench was not currently vacant has no bearing. There was no urgency to the appointment, other than the statutory requirement that it be made within a certain time limit.
    2) The whole idea that the SCOAK would become a retaliatory institution because it had its budget cut is strictly in the minds of the paranoid beholders. The argument that judges are politically biased is based on the belief that they cannot act impartially. That is the essence of the judiciary, impartiality. Is it perfect? No, but in Alaska it is as close as we can come, and to imply that a judge would take retaliatory action for political revenge, without solid evidence, is simply irresponsible.
    To replace a system where judges are selected by their qualifications as jurists as judged by those who work with them daily, attorneys on both sides of cases, is highly suspect. Shall judges be chosen by popular vote, by people who have no idea what judges do each day and how well they do it, and based on each one’s person biases? Want a banana republic? An oligarchy? Good way.
    The docking of the state court budget in an amount equal to what the governor says is the amount spent on abortions is one of the more venal actions Dunleavy has taken. If Bolger holds that against him, I could not fault him, but I doubt that he will, since it is a small part of the court budget, and he is a true professional. Dunleavy, it appears, from his first year in office, is an amateur in way over his head. Fortunately, in three years (or less) we will be rid of him.
    3 )The argument that Bolger, or any judge, would be vindictive is without validity. It is a screed, implying impropriety where none has been shown. This is one of the main reasons our judges are highly regarded. The ones who choose those who are sent to the courts for appointment are made by those who act before them. If the candidate is unqualified, he would not survive their judgement.

    • Dunleavy was elected by a majority of the people who voted. Bolger was elected by …….no one………he was appointed.

      Dunleavy was being force-fed to pick a judge from the two candidates selected by the Judicial Council……. a political group hell-bent on seeing this governor go. Suzanne got it completely right, and she can single-handedly get an important message out to her readers and inform them. And you are against people knowing the truth?

      • With respect, ChrissyB, you should understand as we transition from representative democracy to authoritarian rule, government must be left to professionals.

        • That is what the British said!

    • Out to lunch liberal….Go to ADN or CNN where you belong. You add nothing to this comment section.

  • Sometimes you have to do what is right regardless of the consequences. I know it’s easy to say that when it’s not my career on the line but this judge won’t be in power come next election. There is always another day to put your name in the hat for nomination and you’ll do it with a clear and clean conscience.

  • With the state of the judiciary in our state the way it is and the variance in decisions made in cases. Justice is a pot luck and not all get the cherry pie. It is time to force an upgrade and a review of statute law…

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