Four decades after drafting the Declaration of Independence, Thomas Jefferson warned that allowing the judiciary to be the ultimate arbitrator of all constitutional questions would place us under the despotism of an oligarchy. Jefferson, widely considered one of our nation’s finest presidents, was spot on.

Alaskans experienced an episode of this despotism earlier this year when Anchorage Judge Adolph Zeman overturned the homeschooling statutes that enabled meaningful education of choice to 23,000 of our children. Zeman’s decision was so blatantly out of bounds that the Alaska Supreme Court was forced to reverse it.

But Zeman’s actions were child’s play compared to those of the Alaska Supreme Court in obstructing grand jury investigations into state corruption involving judges and prosecutors.

In 2022, three separate citizen-requested grand jury investigations into government misconduct were pending in Anchorage, Juneau and Kenai. Evidence of questionable conduct by attorneys within the Alaska Department of Law was submitted in each of the requested investigations. Additionally, evidence of questionable judicial conduct was present in the Juneau and Kenai investigations.

On August 16, 2022, Chief Justice Daniel Winfree and Attorney General Treg Taylor “chatted” about the situation. Whether they met in person or spoke on the phone is unknown. It’s also unknown which branch of government initiated the discussion and the extent of internal communications within each branch leading up to it.

What is known is that Winfree documented parts of the discussion in a letter to Taylor, writing grand jury investigations were “an issue of some concern to both the Alaska Court System and Department of Law.”  Winfree added, “I appreciate your willingness to have your representatives meet with court system representatives to seek common ground we might agree on for addressing the issue.”

AG Taylor designated Deputy Attorney General John Skidmore and Criminal Division Director Angie Kemp as the Department of Law representatives. Skidmore and Kemp were key figures in two of the citizen-requested investigations.

The final product of the collaboration of the two government branches was Supreme Court Order 1993 which usurped the Alaska Constitution’s protection of independent grand jury investigations. Since statehood, Alaska citizens have had the absolute right to approach judges or grand juries themselves to request investigations. SCO 1993 erased that right, forcing citizens to go through the Attorney General.

Despite warnings from their own advisory council that SCO 1993 was unconstitutional, the Supreme Court rushed it through to stop the requested investigation in Anchorage, brought by Thomas Garber. Garber’s request focused on systemic failures within the Office of Children’s Services as documented by the current federal class action lawsuit, previous Ombudsman reports, and former State Representative Tammie Wilson’s efforts to request a grand jury investigation.

One of the areas Garber wanted to see investigated was the relationship between OCS, the Department of Law, and the Alaska Court System. In support of this request, Garber cited previous concerns by the Citizen Review Panel that OCS social workers were being forced to yield professional ground to Department of Law attorneys representing them in court.

My articles on AK Mom for the past year and a half have highlighted the aggression of state attorneys and the failure of judges to uphold the law in her case. The Department of Law fought to keep “Lawrence” in a homeless shelter. There is even a concern that the Department of Law was motivated to retaliate against AK Mom for something completely unrelated to her children.

When SCO 1993 was passed, Anchorage Judge William Morse immediately issued an order denying Garbers’s request, stating it needed to be submitted to the Attorney General. However, Garber appealed the order, putting the Supreme Court’s and Attorney General’s actions under intense scrutiny as shown in some of his points on appeal.

First, Garber has asserted “SCO 1993 was formed in collusion between the judicial and executive branches as an unlawful hinderance of the independent power of the grand jury, and that it violates the Doctrine of Separation of Powers.”

Second, Garber has asserted “SCO 1993 was influenced by individuals who were subject to pending grand jury investigations requested by Alaska citizens. SCO 1993 is an abomination of the ethical responsibilities imposed upon Alaska lawyers and judges through the Rules of Professional Conduct and the Code of Judicial Conduct.”

Third, Garber has asserted that SCO 1993 is an action “taken by public officers in violation of the Oath of Office under Article XII, Section 5 of the Alaska Constitution.”

Garber appears to be on solid ground on each of these points. All are troubling, but perhaps the most chilling is the notion that separate branches of government acted in collusion with each other to defy the Constitution.

The doctrine of separation of powers is embedded into the system of checks and balances in our Constitution. The concept was developed by the French political philosopher Montesquieu who wrote, “there is no liberty, if the judiciary power be not separated from the legislative and executive.”

SCO 1993 represents a merger of all three branches of government into one. As a collaboration with the Department of Law, it merged the power of the judiciary with the executive. As a modification of the Constitution and Alaska Statute 12.40.040, it merged the power of the judiciary with the legislature.

It’s despicable that the Alaska Supreme Court and the Attorney General, representing two branches of our own government, combined to stop Garber’s requested investigation into their practices and policies that contribute to the harm of Alaska families. There is no reasonable excuse for their actions. Truly, we have become subject to a “despotism of an oligarchy.”

At 2 p.m. on July 30, 2024, Garber appeared before the Alaska Supreme Court to argue his appeal. How the judges intend to comply with their ethical responsibilities under Canon 3 of the Code of Judicial Conduct will be interesting. It’s hard to imagine how these judges can maintain that Canon’s requisite “appearance of impartiality” when the legality of their own actions is at the core of the dispute.

Not surprisingly, ethical issues abound in this sordid affair. Garber is on his own, without the financial resources to hire competent counsel. Representing the Alaska Court System at the hearing was seasoned attorney Thomas Amodio. In essence, Amodio is defending the judges who will be deciding the case.

Alaska Rule of Professional Responsibility 8.4 deals with professional misconduct by lawyers. The Commentary to this rule reads, “One of the fundamental aims of our court rules is to assure that adversaries have an equal opportunity to prepare and present their case, so as to advance the achievement of a just result.”

The Supreme Court is guilty of violating their own policy. They’ve hired one of the best attorneys in Alaska to represent them while leaving Garber unrepresented. Are they “advancing the achievement of a just result” or salivating at the opportunity to increase the power of their oligarchy through the mismatch?

Missing in action is Governor Mike Dunleavy who is sworn to defend the Constitution and our laws. Obviously, Dunleavy’s Attorney General and Department of Law are behind SCO 1993 but that doesn’t excuse the Governor from fulfilling his oath.

In a normal appellate hearing, each party sits at separate tables, represented by a competent attorney. Each attorney then makes their arguments to the judges sitting on the bench, who are disinterested and impartial.

That wasn’t the case on July 30. Garber, a disabled sheet metal worker with no legal training sat at one table by himself. Amodio was at the other table. Amodio’s clients are the judges sitting on the bench deciding the case. The whole thing is bizarre. It’s a circus and it’s an outrage.

Our liberties are in deep trouble if SCO 1993 is allowed to stand. The Legislature has failed to do anything about it in its last two sessions. Garber’s appeal is our last stand.

James Madison said, “public opinion sets bounds to every government, and is the real sovereign in every free one.”  Folks, it’s up to us.

The Alaska Grand Jury Association held a rally to wave signs immediately before the Supreme Court hearing. Hopefully that helps to remind the judges of the Commentary to Canon 1 which reads, “Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges.”  The Supreme Court has a lot of ground to make up.

The views expressed here are those of the author.

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