Dunleavy appointment to Alaska judicial board will stand, judge rules after two lawsuits

A fair courts group and a Juneau man had challenged the governor’s decision to put a suspended attorney in a public seat

(Getty Images)

By James Brooks

Alaska Beacon

Gov. Mike Dunleavy’s decision to appoint a suspended attorney to a public seat on the state’s judge-nominating board does not violate the Alaska Constitution, an Anchorage Superior Court judge ruled Wednesday.

An appeal to the Alaska Supreme Court is expected, but for the moment, it clears the way for John Wood to serve on the Alaska Judicial Council, which nominates candidates to the governor for judicial vacancies. 

“The Alaska Constitution gives the governor clear authority to appoint members to the Judicial Council — a power central to the executive’s role in our system of checks and balances. Yesterday’s decision reaffirms that authority,” said Attorney General-designee Stephen Cox in a written statement. “The court agreed with the State on every material issue, recognizing that the governor’s appointment of John Wood was both lawful and appropriate, and that Mr. Wood is fully qualified to serve. This is a complete victory for the governor’s constitutional authority — and an important win for the separation of powers and for all Alaskans who want fair, balanced representation on the Judicial Council. With his decades of public service and sound judgment, Mr. Wood will be an asset to the council’s work right away.”   

Alaskans For Fair Courts and Juneau resident Eric Forrer had alleged in separate lawsuits that picking Wood violated the Alaska Constitution. In a pair of expedited complaints, they claimed Wood’s suspended bar license made him ineligible to serve on the Judicial Council because the writers of the Alaska Constitution intended laymen, not trained lawyers, to sit in public seats.

Judge Yvonne Lamoureux disagreed with that interpretation of the constitution, declaring that Wood is not an attorney.

His license was suspended in 2000 because of a dispute over bar dues and he has not practiced law since.

“Mr. Wood is not authorized to engage in the practice of law, and has no intention of practicing law again,” Lamoureux wrote. “While Mr. Wood was an attorney 25 years ago, he is not an attorney today.”

Based upon the plain meaning of the constitutional clause establishing three non-attorney seats on the Judicial Council, and the intent of the framers of the Alaska Constitution, Lamoureux wrote, “the court concludes that Mr. Wood is eligible to serve as a non-attorney member on the council.”

The two plaintiffs had also challenged Wood’s eligibility to serve because the Alaska Constitution forbids a member of the Judicial Council from holding a “position of profit under the state,” and Wood holds a consulting contract with the Dunleavy administration.

In 1968, the Alaska Supreme Court ruled that “position of profit” means acting as an employee in “salaried nontemporary employment” and does not cover consulting contracts.  

Lamoureux, citing that case, ruled against the plaintiffs. 

She also sided with the state and against the plaintiffs in one final argument that revolved around the timing of Wood’s appointment. His predecessor’s term on the Judicial Council had expired during the spring legislative session, but Dunleavy did not appoint Wood until after the session ended. The plaintiffs argued that because of that timing, Wood could not serve until confirmed by the Legislature.

Again, Lamoureux referred to the plain language of the constitution and rejected the argument.

“The text does not reflect that the governor can only fill a vacancy which arose or first happened during the recess (after the Legislature adjourns),” she wrote.

“There is no language in the constitution limiting the ability of an appointee to begin serving upon appointment, and the legislature has expressly allowed those appointed to ‘exercise the functions, have the powers, and be charged with the duties prescribed by law for the appointed positions or membership’ pending confirmation or rejection by the legislature,” Lamoureux said.

Neither Donna Goldsmith, co-chair of Alaskans for Fair Courts, nor Jim Reeves, the group’s attorney, could be reached for comment on Thursday.

Attorney Joe Geldhof, who represented Forrer, said by phone that he was “surprised, bordering on shocked” by Lamoureux’s decision because it was pretty clear to him that the context of the constitutional framers’ discussion around public members and attorney members went beyond its plain meaning.

Someone who has been trained in law cannot act as a layman, even when no longer an attorney, Geldhof said.

“The judge’s decision here, it creates a huge potential for political intrigue and mischief, and it’s just inconsistent with the ordinary language in the constitution and the common understanding of what a lawyer was when the citizens ratified the constitution,” he said. 

While he expects to appeal, “it’ll be interesting in the meantime,” he said. “It’s going to cause chaos with the judicial council.”

• James Brooks is a longtime Alaska reporter, having previously worked at the Anchorage Daily News, Juneau Empire, Kodiak Mirror and Fairbanks Daily News-Miner. Alaska Beacon is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.