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Alaska Senate candidate Joe Miller tried to block Palin-Troopergate probe

Jill Burke

miller-troopergate-9-30-10The year 2008 was a busy one for Joe Miller. An attorney in private practice who was also busy doing  part-time legal work for the Fairbanks North Star Borough, he was also serving as the Interior region chair for the Alaska Republican Party. By March, he was actively working to unseat state party chair Randy Ruedrich in the belief the party needed a leader who would fully back Gov. Sarah Palin. Six months later, Miller signed on to represent a group trying to thwart a legislative investigation into whether Palin -- who had just rocketed onto the national stage as the GOP's pick for vice president -- abused the power of her office when she fired the state's top cop. Palin and Miller's paths would collide again two years later when the former governor endorsed Miller's run for Senate, drawing national attention to his campaign.

Critics on both sides viewed what would come to be known as the "Troopergate" scandal and all of its twists, including the investigations and the lawsuits, as political gymnastics. We don't know how Miller felt at the time or how he feels about it now. Attempts to reach him for comment on this story, through his campaign staff, went unanswered.

Miller's jump into the Troopergate fray came on Sept. 16, 2008, when he filed suit in Fairbanks to stop an investigation already set in motion by the state's Legislative Council. Miller sued on behalf of five Alaskans from the Fairbanks and North Pole communities who wished to "secure their rights as taxpayers and citizens of the State of Alaska to be free from unauthorized, wasteful, and unlawful government spending," according to the opening sentence of Miller's complaint.

The investigation into Troopergate was looking into allegations that Palin wrongfully removed Commissioner of Public Safety Walt Monegan from office because he refused to end the career of her sister's ex-husband, Mike Wooten. Wooten was (and is) an Alaska State Trooper with a bitterly strained relationship with the Palin family. There were claims Wooten tried to threaten and intimidate the Palins, and Miller and others were baffled as to why the man continued to be employed in Palin's hometown.

The Legislature, however, was more interested in the governor's efforts to get Wooten fired. Miller centered his legal argument against the investigation on questions of constitutionality, echoing a theme the self-described "constitutional conservative" is again loudly raising in his bid to dislodge incumbent Lisa Murkowski from office: overreaching government authority. In his complaint he called the investigation "politically-inspired and unconstitutional."

Miller argued that another government entity -- the state Personnel Board -- was the appropriate jurisdiction to pursue claims about ethics problems within the executive branch. Allowing the Legislative Council to investigate opened the process to unfair political influences, he said. With a Democratic senator leading the charge and hinting the outcome wouldn't be good for Palin, the process lacked integrity and fairness, Miller argued.

Among Miller's direct claims was the charge the investigation violated separation of powers by exceeding the constitutional authority of the Legislature. The Legislative Council had no authority to fund the investigation, on which it had agreed to spend to $100,000. And, he said, Democratic Sen. Hollis French's oversight of the process violated constitutional due process guarantees by putting a partisan legislator in charge of what was supposed to be an independent investigation of an elected official.

To Miller's way of thinking, the investigation was "blatantly unlawful," as he wrote in a column for the Catholic News Agency published less than a week after he filed the lawsuit.

But Miller never pressed his legal arguments. After a judge ruled against plaintiffs in a similar case filed in Anchorage, Miller voluntarily dropped the Fairbanks case.

This came as no surprise to the attorney representing the Legislative Council, to the investigator it hired, or to French.

"It is hard to imagine a lawsuit more dangerous to Alaska's tripartite form of government than one that asks the courts to instruct the Legislature that there are certain executive actions that are off-limits to legislative inquiry, certain legislators who are too ‘partisan' to be assigned responsibility in legislative investigations, and certain people whom the Legislature cannot employ as investigators. That is what this suit does," wrote attorney Peter Maasen in his answer to Miller's complaint. "Fortunately, under Alaska's separation-of-powers principles and case law, the complaint is clearly meritless as a matter of law. The court should dismiss it."


Maasen went on to call Miller's claims extraordinary and baseless and the suggestion that French was too partisan to be effective "absurd." "Express constitutional direction as well as fundamental separation-of-powers principles prevent the courts from second-guessing whether a sitting Senator, Democrat or Republican, is qualified to perform the legislative role that his fellow legislators have seen fit to assign to him," Maasen wrote. "Those same principles prevent the courts from second-guessing the legislative choice of the investigator."

On Oct. 2, 2008, Alaska Superior Court Judge Peter Michalski issued an order dismissing the Anchorage case after finding no violations of constitutional due process or fair treatment violations. Michalski also found that it was within the Legislature's investigatory power to look into the termination of a public officer -- in this case, Monegan -- it had previously confirmed, and that the Legislative Council, under the Alaska Constitution, is authorized to "perform duties and employ personnel as provided by the legislature."

Michalski also addressed the issue of politics interfering with fairness. "Fairness within a legislative context is different than fairness within a judicial context. It is expected that legislators will belong to some party and will support the positions of their party, often publicly," he wrote. "In this case, the allegations of the appearance of partiality among the individuals involved in the investigation do not rise to the level of a constitutional violation."

One week later the Anchorage plaintiffs -- a group of five GOP lawmakers -- lost an attempt to reverse the lower court's decision. Miller dropped the Fairbanks case four days later.

"I think it's just that he realized that it was pointless," said Maassen in an interview late Thursday.

Maassen believed then -- as he does now -- that the lawsuits, though purporting to be motivated by a desire to remove political skew and agendas from the Troopergate investigation, were at their core opportunistic and purely political.

The agenda, he explained, appeared to be to discredit the investigation by making it look political, and one way to do that was to file the lawsuit. Finding a legal foundation for the suit, Maassen said, would have been a secondary concern for the plaintiffs.

"It was politically motivated to begin with," he said.

The two investigations into Palin's handling of Monegan yielded opposite results. The Legislative Council found she had abused her power by allowing her husband to actively pursue an end to Wooten's career. The state Personnel Board disagreed.

Two years later, Miller's loyalty to Palin and his emergence as a constitutional purist vying for office would be rewarded with her high-profile endorsement of his effort to dislodge Sen. Lisa Murkowski from the U.S. Senate. Miller's race reverberates with Palin's efforts nationwide to change the face of Washington, but it is also deeply personal, happening on home turf and adding the latest chapter to a public feud years in the making. Murkowski's father, former Sen. Frank Murkowski, appointed his daughter to the seat over Palin and other candidates when he vacated the position to become Alaska's governor. Palin would go on to defeat the elder Murkowski in 2006, but her near miss on the Senate appointment stuck with her enough that she wrote about the lost opportunity in her memoir, "Going Rogue."

Miller's arguments in Troopergate and his bid for national office -- one dealing with the state constitution, the other largely focused on principles embedded within the U.S. Constitution -- were and are steeped in the politics of the day. On Nov. 2, Alaska voters will decide whether Miller's political brand of constitutional purity as a candidate will hold up better under scrutiny than the constitutional arguments he posited in Troopergate.

Contact Jill Burke at jill(at)alaskadispatch.com.