Friday, December 01, 2006

The Alaska Supreme Court: Politics by the Judge

The Alaska Supreme Court has been in the spotlight for its rulling on same sex benefits. The Alaska Legislature has been right in their criticism of the ruling. It is a ruling that is flawed on legal grounds.

It is safe to say that the Judicial body is a political body and the Alaska Supreme Court has an agenda. During the election, I was silent on a case I had before the Court. It was a federal challenge against the statutory laws that deal with child custody proceedings. The Court's ruling can be found here:

The Alaska Supreme Court has agenda against parental rights. In the Court's ruling, they had this to say:

These arguments are unpersuasive for several reasons. As the United
States Supreme Court made clear in Troxel v. Granville, the constitutionality of a best-interests statute like Alaska’s ordinarily cannot be determined on a facial basis, that is, by determining whether the statute is invalid in all applications, but must instead be considered only as the statute applies in a particular case.

When it came to challenging the stautory laws, the Alaska Supreme Court argued that a facial challenge could not be made and cited to a dissenting opinion on the matter.

The Court was incorrect on numerous grounds. One is the challenge was based in part on a First Amendment challenge. What the Alaska Supreme Court hinted at was the challenge would not pass the Salerno test. A United States Supreme Court decision that is guiding on facial challenges to statues.

What is hypocritical about the comments by the Alaska Supreme Court is in the case Planned Parenthood of Alaska. The Court had this to say about facial challenges:

C. Facial Challenge

The state next asserts that plaintiffs' facial constitutional challenge must fail because they have failed to showthat the parental consent or judicial authorization requirementcould have no constitutional applications. In advancing this assertion, the state relies on Javed v. State, Department of PublicSafety, [Fn. 17] where we quoted the Supreme Court's decision in United States v. Salerno [Fn. 18] for the proposition that "[a]statute is facially unconstitutional if 'no set of circumstances exists under which the Act would be valid.'" [Fn. 19] But we did not invoke the Salerno rule in Javed as a justification for avoiding constitutional review; instead, we relied on the rule for the distinctly narrower purpose of severing a limited portion of astatute, which we found unconstitutional, from the balance of the statute, which we found valid. [Fn. 20] And in any event, Salerno's "no set of circumstances"language is not a rigid requirement. [Fn. 21] In reviewing challenges to abortion-related statutes, the United States SupremeCourt has shown considerable flexibility in allowing litigants toraise claims alleging facial invalidity. For example, in Planned Parenthood of Southeastern Pennsylvania v. Casey, [Fn. 22] the Court invalidated a spousal notification statute even though statistics suggested that ninety-five percent of women seeking abortions would notify their husbands regardless of therequirement. [Fn. 23] In eschewing a rigid application of Salerno,the Court explained: "The proper focus of constitutional inquiryis the group for whom the law is a restriction, not the group forwhom the law is irrelevant." [Fn. 24] Applying Casey's reasoning here, we conclude that Salerno poses no bar to plaintiffs' facial challenge of Alaska's parental consent or judicial authorization requirement.

When it came to a law diminishing parental rights, the Alaska Supreme Court stated the exact opposite. They allowed a facial challenge, even when the entire statute was being struck down. The Court knows the odds of getting to the United States Supreme Court are small and the Court in that case went against the Salerno test.

In 2001, the State of Alaska responded to a writ I had submitted to the United States.

I will once again submit a writ to the United States Supreme Court. In the writ the following is being argued:

A. Summary of Allegations in the Amended Complaint

The Alaska Supreme Court in Lamb vs. State of Alaska 2001, stated the Petitioner “could challenge the constitutionality of the statute through a direct challenge to the original custody order through a request to modify the order”. See Alaska Supreme Court Memorandum Opinion and Judgment No. 1030 - June 13, 2001 pg. 14-15 Para 22.

This is precisely what the Petitioner did.

The Petitioner made a First Amendment challenge in conjunction with an Equal Protection/Due Process challenge through motions to modify the order. And the Petitioner brought in new facts to the case that were never previously litigated because they occurred after the original trial.

The Petitioner also argued that the laws as they are written, put the burden on the judiciary to correct the constitutional deficiencies in the laws. Thus allowing the judiciary to in effect, legislate factored language into the law.

The Petitioner argued that federal law must be followed when in conflict with state law. Thus raising the Supremacy Clause issue.

This Court had the opportunity to review the State of Alaska’s compelling interest argument in Lamb vs. State of Alaska 2001. See cert denied. last visited November 8, 2006.

In that case, the State of Alaska argued that it had no interest in the case to warrant a suit be brought against it. The Petitioner revisited that decision in this case to show that the State of Alaska did not have a compelling interest in the case to overcome a constitutional challenge.

The State of Alaska could not argue any different, because the compelling interest argument had been decided in the previous decision. Moreover, the State of Alaska in response to the Motion for Summary Judgment in this case, stated that it could not involve itself in determining the custody issue in this case. App. C.

Thus raising the question if a trial court judge is considered to be an agent of the state, thus limiting its discretion when there is no compelling interest.

B. The Decisions Below

Superior Court Judge John Suddock dismissed the Petitioner’s Motion for Summary Judgment, holding that it did not violate the Equal Protection Clause to the federal constitution. In his rationale for treating similarly situated parties differently, he stated that the best interest standard gives the court the broad judicial discretion to treat parties differently.

Judge Suddock reasoned that another Judge trying this case under the same circumstances could have come to a different conclusion on legal custody.
Judge Suddock also discounted the state’s motion in this case. In the State of Alaska’s response to the Summary Motion, the state stated that it could not take a position on custody in this case.

This Court has stated in Palmore that a Judge is an agent for the state and as such, is acting on behalf of the state for the purpose of a Fourteenth Amendment challenge. The State of Alaska, it seems, sidestepped this Court’s position that the trial court judge is an agent for the state and through the trial judge, the state is taking a position on custody.

In the amended motion, the Petitioner made it clear to the trial court that he was challenging the statutory law on more than one ground. The trial court ignored this Court’s decision in Troxel when it came to ambiguous language in the law.

The Alaska Supreme Court affirmed the lower court’s decision. The court addressed only one factor in the statutory law that allows a judge to “consider any ‘other factors that the court considers pertinent’.”

The Alaska Supreme Court cited to Troxel as a basis for their rationale that the constitutionality of a statue cannot be determined on a facial challenge. The court ignored the fact that the challenge also included the First Amendment challenge as well as the privacy issue.

The Salerno test seems to be the operative reasoning in the court’s argument, but in Planned Parenthood of Alaska, the Alaska Supreme Court allowed a facial challenge to the State of Alaska’s parental notification laws. Even when the state argued against the facial challenge by citing to Salerno.

Moreover, the Petitioner was not seeking to invalidate the entire statutory laws. The Petitioner cited to factors in the law that would give the state a compelling interest to intervene in custody matters. Those factors were not being challenged.

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