Alaska Supreme Court chief justice recuses himself from Gov. Dunleavy’s recall case

Alaska Supreme Court Chief Justice Joel Bolger waits outside the House Chambers in Juneau before delivering the annual State of the Judiciary Address to the Alaska Legislature on Feb. 20, 2019.
Alaska Supreme Court Chief Justice Joel Bolger waits outside the House Chambers in Juneau before delivering the annual State of the Judiciary Address to the Alaska Legislature on Feb. 20, 2019. (Photo by Skip Gray/360 North)

Alaska Supreme Court Chief Justice Joel Bolger has recused himself from the ongoing case that will decide the legality of the campaign to recall Republican Gov. Mike Dunleavy.

Bolger, in a two-page notice Monday, said he has made “public statements that could suggest a strong disagreement with the governor’s conduct on some very fundamental issues affecting the judicial branch, conduct that forms part of the basis for the recall petition under consideration.”

“In other words, this is a case where a reasonable person might question whether my judgment is affected by my overriding public responsibilities to the justice system,” he wrote. “I therefore recuse myself from further proceedings in this case.”

Dunleavy’s allies had criticized Bolger’s participation in the case because of statements the justice had made about issues connected to the recall campaign’s legal grounds for recall. Whether those grounds are legally sufficient is one of the questions that the Supreme Court will consider in the case, which is on appeal from Anchorage Superior Court.

One of the grounds cited by the recall campaign is Dunleavy’s refusal last year to appoint a judge to a position on the Palmer Superior Court within a legally-required 45-day window.

Bolger heads the Alaska Judicial Council, which nominates judges for the governor to select from. In response to Dunleavy’s refusal to select from the list of names submitted by the council, Bolger issued a statement saying that Dunleavy’s office didn’t seem to understand the Alaska Constitution’s requirements around the appointment of judges, and added that “the governor must appoint one of the candidates nominated by the council.”

Another of the recall campaign’s grounds is that Dunleavy violated the state’s “separation of powers” doctrine by using his line-item veto to cut the judiciary’s budget, in response to a decision by the Alaska Supreme Court that upheld protections for abortion. Months later, Bolger gave a speech at the Alaska Federation of Natives’ annual convention where he asked participants to push back against “political influence” of the courts.

“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 at the convention.

In an initial letter to attorneys involved in the recall case, Alaska Appellate Courts Clerk Meredith Montgomery wrote last month that Bolger “does not have any personal bias or prejudice concerning the parties or attorneys involved in this case, or personal knowledge of any disputed evidentiary facts.”

“And he knows of no other reason why he cannot render a fair and impartial decision in this matter,” Montgomery said.

Since then, though, attorneys have submitted the full record of the lower court’s previous consideration of the recall case, giving Bolger the chance to rule on his disqualification “with a better understanding of this record,” he wrote in his letter Monday.

“It is clear to me that the issue raised in this case —the adequacy of the grounds for recall of a sitting governor — mandates serious consideration of any potential disqualifying circumstances to maintain the public’s faith and confidence in the justice system,” Bolger wrote Monday.

Bolger will be replaced by a retired Supreme Court justice, Robert Eastaugh.

This story has been updated.

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