For the first time anyone can remember — and, if there is historical precedent, it is not accessible via current legislators’ institutional knowledge or the internet — the Alaska State Senate has turned down the request from the House for a joint session. The purpose of the two chambers meeting together, which had been scheduled for Thursday, is to confirm appointments made by the governor.
During a floor session Wednesday afternoon, Senate Majority Leader Peter Micciche (R-Soldotna) moved and asked unanimous consent to rescind the senate’s acceptance to the House’s procedural invitation. Democrats in the minority objected.
“We have a long process. The culmination is tomorrow. The candidates who have been appointed and are awaiting confirmation, waiting to roll,” Senate Minority Leader Berta Gardner (D-Anchorage) countered. “It should happen tomorrow.”
“The reality of it is, this is often an all-day process,” Micciche reasoned. “We have a couple days left and we want it to be dedicated to key legislation to get that across the finish line.”
He said that the joint confirmation hearing would be rescheduled. The body supported the move by a vote tally of 15-5 along caucus lines.
One lingering appointee is Acting-Attorney General Jahna Lindemuth. Another is Drew Phoenix, Acting-Commissioner of the Human Rights Commission (HRC). Both appointments have, in recent days, sparked controversy.
Campaign Against Drew Phoenix
HRC is a state agency tasked with enforcing the Alaska Human Rights Law, as defined by AS 18.80. Seven commissioners, appointed by the governor and confirmed by the legislature, serve five-year terms. Phoenix was one of two members nominated this session by Gov. Bill Walker (I-Alaska).
Before the appointment, Phoenix served for three years as executive director of Identity, Inc., a statewide nonprofit which advocates on behalf of LGBT Alaskans. He worked for the ACLU of Alaska Foundation before that. Phoenix currently lives in Fairbanks after moving from Anchorage with his wife.
“Between those two organizations, I’ve worked very much in depth with all kinds of civil rights, human rights issues,” Phoenix told the Senate Judiciary Committee during his first confirmation hearing on April 7.
None of which has to do with a current campaign being waged against his confirmation by the Alaska Family Council/Action (AFC/A), a conservative nonprofit that has fought against anti-discrimination legislation statewide.
In two email blasts sent out on Monday and Tuesday, as well as a Facebook post, AFC/A called on supporters to oppose Phoenix’s confirmation. In one such mailer, with the subject heading that read, “Walker Appoints Transgender ACLU Activist ! [sic] Time To Act[,]” AFA/C president Jim Minnery called Phoenix a “transgender activist” and implored his supporters to tell their “legislators that an extreme, left-wing, anti-religion ACLU activist is the wrong person to be serving on a quasi-judicial panel like the Commission for Human Rights.”
Phoenix, who is a transgender man, is also an ordained United Methodist minister who practiced for more than 19 years before moving to Alaska. He transitioned while ministering as pastor of St. John’s United Methodist Church of Baltimore City in Baltimore, Maryland.
While there is plenty of conflicting opinions over doctrinal interpretation as it pertains to sexual orientation and gender identity, calling him “anti-religion” is dishonest and without merit.
There is some fairly universal agreement among sects of Christianity regarding honesty.
“I think most of us down here really want individuals to be treated openly and fairly and it sounds like that’s been a goal of yours,” committee chair, Sen. John Coghill (R-North Pole) said during the hearing. “But, in the gender identity world, you certainly, I think, if that’s what you were referring to with the gay and lesbian work, that seems to be the hot button issue right now. Is that something you work on?”
Coghill said Phoenix’s affiliation with the ACLU concerned him.
“[W]hen we get into a public body, we have to look at the law and try to apply it as evenly as we can…. I could see some real tension there. I’m just, when reading your biography, it just got my attention up a little bit.”
“My role as commissioner is to enforce the human rights law as it exists in 18.080 and I will do that faithfully, and objectively, and impartially, to the best of my ability,” Phoenix responded.
Alaska human rights law does not offer workplace or housing protections for LGBTQ citizens, he pointed out.
There is legislation to extend such protections currently in both the House and Senate, but there has been little movement. The HRC passed a resolution last year that would recognize such discrimination under the existing auspices of sex discrimination, mirroring the federal Equal Employment Opportunity Commission (EEOC), but Walker did not sign off on the move.
Senate President Pete Kelly (R-Fairbanks) also voiced concerns about the role of both the ACLU and the HRC in relation to court decisions pertaining to abortion.
“One of the things that I’m struggling with isn’t necessarily this candidate, it’s the Human Rights Commission,” he opined. “It seems to want to get out of the bounds that are created for them by the statutes that we have written. And it seems that the ACLU often comes to their aid in that.”
Kelly wondered allowed if, by confirming Phoenix, they were “going to add another person to the commission” who would be “willing to go through other means to achieve those ends.”
“It seems they’re planning to usurp the legislature’s authority,” he said ominously.
Sen. Bill Wielechowski (D-Anchorage) took issue with the remarks.
[T]he position that Drew Phoenix has taken, or his organization has taken — in which he hasn’t worked in four years — is a position in that the Alaska Supreme Court agreed with. So, I want someone on the Human Rights Commission that understands the law, that is advocating for justice and human rights, and I don’t care what his personal views are on these highly controversial issues that have absolutely nothing to do with his ability to perform his functions as commissioner on the Human Rights Commission.
“The Majority gave no reason for this unprecedented delay,” Wielechowski said about the joint session cancellation. He responded to my inquiry Wednesday evening, via email. “Tomorrow is Day 86 and we have had months to learn about these nominees. All I can say is there must be some nomination that they do not want to vote on.”
Earlier, I spoke with Micciche over the phone. He flatly denied one had anything to do with the other.
“I haven’t seen the emails from the Alaska Family Council,” he said emphatically. “It has not been mentioned by anyone in the Majority caucus. Leadership has not discussed it. It has no part in the decision to reschedule the joint session.”
“We’re trying to wrap up on the budget.”
Jahna Lindemuth Faces Public Opposition
While I spoke with Micciche, Walker’s attorney general pick was in the middle of her own Senate Judiciary confirmation hearing. Lindemuth has been serving as the acting-attorney general since Craig Richards resigned in June of last year.
Objection to Janna Lindemuth’s confirmation came largely from the public and stems from a case regarding land known as R.S. 2477 right of ways. Alaska has been in push-and-pull legal battles over development and use of those lands for over a century and that history is as complicated as it is extensive.
The federal Mining Act of 1866, Sec. 8 provided that “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”
That section of the law – defining the lawful use of those right of ways – is known as R.S. 2477. It lasted until Congress repealed and replaced it with the Federal Land and Policy Act in 1976 (FLPMA). FLPMA effectively froze the R.S. 2477 right of ways in Alaska.
The Alaska Native Claims Settlement Act (ANCSA), signed into law in 1971, disputed the land freeze in cases where land conveyed “is subject to valid existing rights… even if those existing rights are not recorded or otherwise identified.”
In the 1980s and ’90s, the Alaska Department of Natural Resources (DNR) mapped out more than 650 R.S. 2477 trails and the state legislature codified the State’s claim to them. The Dalton Highway, Farmers Loop Road in Fairbanks, DeBarr Road in Anchorage, the Klutina Lake Road near Copper Center, the Iditarod Trail, and the Chilkoot Trail are all R.S. 2477 right of ways.
Ahtna, which was incorporated under ANCSA as one of thirteen Alaska Native Regional Corporations, sued over use of R.S. 2477 lands conveyed to them under ANCSA in 2008. Their contention was that lands they held claim to could only be used as accessible for the public to travel through, and were ineligible for recognition by the State as land available for public commercial and recreational use. They were only available to the public to travel through (egress/ingress).
Anchorage Superior Court Judge Andrew Guidi, however, sided with Ahtna. The State has appealed that partial summary judgment. Acting-Attorney General Janna Lindemuth is heading that effort, and is pursuing a settlement. This has made her confirmation controversial to many members of the public. Senate Judiciary heard their views Wednesday afternoon.
“If anyone does disagree with my judgment in this one particular case, I ask that I be judged on my entire record, not only the eight months that I’ve served as Alaska’s attorney general but in my whole career,” she told committee members.
Defending the efforts towards a settlement, Lindemuth added,
There will be boat launches, there will be fishing opportunities along the right of way, and there will be camping. And the main distinction is that Ahtna will be allowed to charge for camping. But this will be on Ahtna land, so there’s going to be additional areas cleared for camping – so, additional opportunities for camping. Ahtna would be allowed to charge a reasonable fee that’s not more than what a State campground charges. What they were experiencing with camping is folks leaving trash and that kind of thing. So, we’re trying to balance those rights in this particular case.
Scott Ogan opposed Lindemuth’s confirmation. Ogan served in both the House and Senate over a decade’s time — including as the vice-chairmen of the Judiciary Committee in both bodies — before moving onto the Department of Natural Resources, where he headed the Public Access Assertion Defense (PAAD), which recorded evidence supporting R.S. 2477 lands.
He said that the current suit, which Lindemuth was pursuing a settlement on, was the strongest case supporting historical use of any R.S. 2477 case in state history. Settling, he said, would be a mistake.
“I see this as a co-management of the State’s assets, which is very troubling to me. The AG mentioned in her testimony that the suit was against Ahtna. Ahtna sued the State and the State is being defended. Settling this, in my opinion, is not in the best interest of the State,” he explained. “I want an attorney general that is going to be aggressive about that and not roll over and capitulate, because I believe that’s what’s going on.”
Conversely, Michael Geraghty, attorney general under Gov. Sean Parnell (R-Alaska), said, “I do not see eye to eye with our governor on many issues, but his appointment of Ms. Lindemuth to the AG position was an excellent choice and one I wholeheartedly endorse.”
Rebutting Ogan’s comments, he added,
Only a fool or a neophyte believes they can achieve the best results by always taking their cases to trial and casting their fates to a jury, or a single judge, and then perhaps an appellate court. Any attorney general worth his or her salt will always explore opportunities to resolve cases at the appropriate time based upon the calculus of weighing the risks involved and whether there is a compromise available that can accommodate the critical needs of the people of Alaska, but also recognizing that all settlements aren’t perfect to one degree or another. But they’re far preferable to being shut out by the courts and coming away with nothing except perhaps years of appeal and continuing uncertainty and frustration.
“She’s simply an outstanding attorney,” he concluded. “She’s imminently qualified.”
“That was three minutes over, but very well said,” Coghill said, laughing.
Qualified to Serve
The House and Senate are constitutionally obligated to meet in joint session to consider gubernatorial appointments. Those appointees, whether confirmed or not, serve at the pleasure of the governor — and can be removed by law if warranted (Article III, Section 25 and 26). The only difference between a confirmation and no confirmation is the addendum of the word “Acting” in front of their job title.
There is no constitutional provision allowing either legislative chamber to punt due to time constraints or budgetary prioritization.
There is no constitutional provision requiring that nominees must agree with senators on policy issues.
Alaska has not turned down an appointment to the office of attorney general since 2009. That year’s achievement level was unlocked by Gov. Sarah Palin, who nominated Wayne Anthony Ross.
It was well deserved.
Ross’s controversial nomination was train wreck — though not in regard to employment with the ACLU, gender identity, or a pursuit of a settlement in a case about land use rights.
In 1993, the Anchorage lawyer who drove (drives?) a red Hummer with the license plate “WAR” wrote a letter to the Alaska Bar Association calling LGBTQ Alaskans “degenerates” whose “lifestyle was a crime only a few years ago, and whose beliefs are certainly immoral in the eyes of anyone with some semblance of intelligence and moral character.”
He likened his opposition to LGBTQ Alaskans to his aversion to lima beans — during his confirmation hearings.
In response to Palin’s critics, he suggested that “she needs to smile more.”
In his book, Blind Allegiance, former Palin aide Frank Bailey noted that Ross was,
brilliant and conservative, with the religious right — including the pro-life Alaska Family Council headed by tenacious religious conservative Jim Minnery — strongly supporting him.
Legislators, the public, and AFC/A may need to reevaluate what “unqualified” means if disagreements over policy decisions (which, in Lindemuth’s case, are her prerogative and to be adjudicated by the governor, barring demonstrable illegality necessitating legislative action) and past employment (which in normal years would be marked in the “plus” column, in Phoenix’s case) are to be accepted as newly adopted benchmarks.
The Senate needs to reschedule the joint session and give these appointees their constitutionally mandated confirmation hearings. Anything else sets a very dangerous precedent and departure from a functional legislative branch.