Opponents of a legislative investigation into "troopergate' on Wednesday made a last-ditch appeal to waylay the probe, telling the Alaska Supreme Court the investigation is unconstitutional, unfocused and unfair.
The justices, who weren't shy about questioning lawyers on both sides of the case, said after a 1½-hour hearing they'd take it under advisement.
But they're expected to render a decision sometime today because tomorrow is when the Legislature’s independent investigator, Steve Branchflower, is due to deliver his report, which legislators could make public right away.
The high court’s decision, as well as the Branchflower report, are of high national interest because of Gov. Sarah Palin’s status as John McCain’s vice presidential running mate.
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A bipartisan panel of legislators voted 12-0 in late July, a month before Palin’s candidacy was announced, to spend up to $100,000 on Branchflower’s investigation.
They hired the retired state prosecutor to look into Palin’s firing of former Public Safety Commissioner Walt Monegan and whether she or members of her administration abused their powers in pushing for the dismissal of a state trooper involved in a child-custody fight with the governor’s sister.
Palin hasn’t made good on an early pledge to cooperate with Branchflower, and the McCain-Palin campaign has charged the investigation is under the control of biased Democrats out to damage the Republican ticket’s election chances.
Having lost a state Superior Court bid last week to shut down the investigation and keep a lid on Branchflower’s report, lawyers for six Republican lawmakers Wednesday pressed an appeal to the Supreme Court, which agreed to consider the case on a hurry-up basis.
Lawyers for the six legislators and for Branchflower and committees supervising his investigation each had 30 minutes to make their arguments.
The spacious courtroom in downtown Anchorage wasn’t quite filled with journalists, lawyers and spectators, but clerks were so worried about an overcapacity crowd that they handed out green “public seating passes.”
Local attorney Kevin Clarkson argued for the six Republican lawmakers — Rep. Carl Gatto of Palmer, Rep. Wes Keller of Wasilla, Rep. Mike Kelly of Fairbanks, Rep. Bob Lynn of Anchorage, Sen. Fred Dyson of Eagle River, and Sen. Tom Wagoner of Kenai.
Clarkson, who was up first, didn’t speak long before the justices began firing questions at him.
Justice Daniel Winfree asked how Clarkson figured his clients had any standing to sue based on the notion an unconstitutional investigation violates the individual rights of others, chiefly Palin’s.
Because this is a case of “public significance,” Clarkson replied.
“Is this one of public significance or just one of public interest?” Winfree shot back.
“It’s both,” Clarkson said.
Later, Justice Robert Eastaugh asked, “What are we to make of the fact” that a bipartisan panel voted unanimously to conduct the investigation?
Clarkson said the investigation has lost focus, that lawmakers exceeded their authority in launching it, and that it should be delayed until they can do a proper investigation for a constitutionally valid purpose — making or changing laws.
That’s just what the Legislature is doing, argued Peter Maassen, an attorney for Branchflower and the legislative panel overseeing his investigation.
As with Clarkson, justices soon were questioning Maassen.
“Who’s doing this investigation?” Winfree asked. Is it the Legislative Council, which ordered the probe, the Senate Judiciary Committee that issued subpoenas to the governor’s husband and aides, or who exactly?
The legislative branch, Maassen replied.
Maassen argued that if the governor’s rights or those of other people were somehow violated, it’s up to them to go to court for protection, not the Republican legislators acting as citizen taxpayers.
Justice Warren Matthews asked Maassen whether Branchflower had prevented any witnesses from telling their stories or otherwise mistreated them, as Clarkson suggested.
“What’s the record on that?” Matthews asked.
“There isn’t any record,” said Maassen, adding that what Branchflower has been doing “is unknown to me.”
Maassen urged the justices not to stop the investigation, saying that would be the “worst” kind of interference in the separation of powers between branches of government.
In the lobby after the hearing, speculation began immediately about how the justices might rule.
“I’ll be shocked if they overturn the Superior Court decision,” said Sen. Bill Wielechowski, an Anchorage Democrat and member of the Senate Judiciary Committee.
Lynn, one of the six Republican legislators who sued, was less bold.
“I’m hopefully optimistic,” he said.
Clarkson said he hopes the court will issue an order to not only halt the investigation but to keep the Branchflower report temporarily under wraps.
Clarkson had help from Texas-based Liberty Legal Institute, the legal arm of the Free Market Foundation, which is associated with evangelical leader James Dobson’s Focus on the Family, and lists its guiding principles as limited government and promotion of Judeo-Christian values.
Clarkson acknowledged he’s also working with, though not receiving payment from, the McCain-Palin campaign.
“Have I talked to them? Sure. Do they tell me what to do? No,” he said, adding: “Sometimes they don’t know what they’re talking about.”