Current Issue

  • Volume 35,
  • Number 2 -
  • December 2018

Address

Keynote Address: The Alaska Constitution and the Future of Individual Rights
Erwin Chemerinsky
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Alaska Native Perspectives on the Alaska Constitution
William L. Iggiagruk Hensley & John Sky Starkey
PDF

Articles

Alaska, The Last Statehood Constitution, And Subnational Rights And Governance
Robert F. Williams
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Of Time, Place, and the Alaska Constitution
G. Alan Tarr
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This Article places the Alaska Constitution in historical perspective by comparing it with other state constitutions. It first considers how the convention delegates’ need to satisfy four audiences—Congress, Alaska residents who would ratify the constitution, those who would live under the constitution, and posterity—affected the constitution’s design. It next shows how the Alaska Constitution reflects the fact that it is the state’s first constitution, that it is a western constitution, and that it is a mid-twentieth-century constitution. Finally, it compares the Alaska Constitution with the Hawaii Constitution, which was drafted at the same time.

Alaska’s Merit Selection Of Judges: The Council’s Role, Past And Present
Teri White Carns & Susie Mason Dosik
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Delegates to Alaska’s Constitutional Convention adopted a Judiciary Article that called for the state’s judges to be selected and retained in a merit selection system. Modeled after the “Missouri Plan,” attorneys applying for judgeships are reviewed by the Judicial Council; two or more candidates are nominated to the governor; the governor appoints from the Council’s list; and all judges periodically stand for retention in the general elections. Alaska’s Judicial Council is composed of three non-attorneys appointed by the governor and confirmed by the legislature, three attorneys appointed by the Alaska Bar Board of Governors, and the Chief Justice who serves ex officio. All appointed members serve staggered six-year terms and are appointed with due consideration for area representation and without regard to political affiliation. This article draws on Council minutes, reports, and other materials to describe the Council’s selection process, and how it has evolved since the first days of statehood. The authors evaluate the effectiveness of the process using objective measures, including outcomes of retention elections. Finally, the article concludes with considerations for possible changes to make the process better suited to the Council’s increasing work load and the needs of applicants and others participating in judicial selection.

Merit Selection of Judges in Alaska: The Judicial Council, The Independence of the Judiciary, and the Popular Will
Walter L. Carpeneti & Brett Frazer
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The judicial selection and retention provisions of the Alaska Constitution, found in Article IV, achieve a delicate and remarkably successful balance between competing interests. The purposes of this article are to describe this constitutional plan (called “merit selection” because it begins with nomination based on merit alone), explain why the founders adopted it, examine historical challenges to it, and assess its performance on the 60th anniversary of Alaska statehood.

Notes

Racing to Regulation: A Comparative Analysis of Virtual Currency Regulation in Alaska And the Proposed Alaska Money Services Act
Carlos Manzano
PDF

The emergence of virtual currencies has revolutionized the financial industry by creating an alternative form of payment that seeks to insulate individuals from government and bank influence. Yet, federal regulation of virtual currency has remained limited. Many state legislators have rushed to fill the gap by enacting laws regulating virtual currency use and transmission. This state-by-state approach has led to significant variation between state regulatory regimes, creating a regulatory spectrum of lenient to strict regulatory approaches. In March 2017, Alaska House Representatives Zach Fansler and Sam Kito proposed the Alaska Money Services Act to require licensing for virtual currency activity. The bill’s proposed requirements lean towards the strict side of the regulatory spectrum, bringing the potential to drive virtual currency businesses away from Alaska. This Note proposes that Alaska legislators enact virtual currency legislation that adequately balances technological innovation with consumer protection through several recommendations, including: (1) enacting virtual currency-specific legislation rather than importing regulation into existing and outdated laws, (2) clearly defining the legislation’s scope, (3) collaborating with stakeholders in enacting legislation, (4) including an on-ramp to ensure emerging startups are not overly burdened, (5) tailoring the level of regulation to the level of risk a virtual currency business poses to Alaska consumers by tiering requirements to transmission volume, (6) requiring only relevant information in the application, and (7) reducing agency discretion to revoke licenses.

Banishment Of Non-Natives By Alaska Native Tribes: A Response To Alcoholism And Drug Addiction
Halley Petersen
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Since 2015, at least a dozen tribal court banishments have been reported in Alaska, mainly involving alleged bootleggers and drug dealers in rural communities. Rural Alaska communities, which are predominantly Alaska Native, face high rates of alcoholism, drug abuse, and related crime. Faced with these drug and alcohol issues and insufficient access to law enforcement, it is not surprising that some communities have decided to banish offenders. However, banishment is not currently legal, at least when imposed upon non-Native citizens. Tribal courts lack sufficient jurisdiction over non-Natives to banish them for bootlegging or dealing drugs. Tribal governments are sovereigns with inherent powers, but they are subject to certain restrictions under the federal government. Land-based jurisdiction is insufficient to claim jurisdiction in these cases because Alaska lacks significant Indian country and the Montana factors fail to provide definitive support. Tribal jurisdiction, however, should be expanded to allow tribal courts to banish non-Natives for violations of drug and alcohol laws to improve access to justice, decrease the burden on state law enforcement, and improve welfare in rural Alaskan communities.

Recollection

Preparing the Way: Tom Stewart’s Recollections On the Alaska State Constitutional Convention
Arranged by Thomas Metzloff
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One of the most important figures in the successful effort for Alaska statehood was Tom Stewart. Born into an established Juneau family headed by Ben Stewart, founder of the Alaska Territorial Department of Mines, Tom was raised in Juneau. After earning his B.A. at the University of Washington, he attended Yale Law School. Following graduation, he clerked for United States District Court Judge George Folta in Juneau in 1951 and became a member of the Alaska Bar. After clerking, he served as Assistant Attorney General for Alaska from 1951 to 1954. He was then elected to the House of Representatives for the Alaska Territorial Legislature, and became closely involved in the efforts to pursue statehood while serving as the Secretary for the 1955 Alaska Constitutional Convention (the “Convention”).

In 1992, Stewart drafted an article for the Alaska Law Review focusing on his recollections of the work he had done both before and during the Convention. This anecdotal article was intended to share Stewart’s unique perspectives on what he thought were some of the significant elements of the constitution drafting process. For whatever reason, the article was not published at that time. In preparing for this symposium, Stewart’s article was unearthed, and it seemed appropriate to publish it as part of this symposium issue.

Stewart’s dedicated efforts to accomplish the drafting of a state constitution were motivated first and foremost by his desire for Alaska statehood. It was clear to him that Alaskans lacked the necessary authority to govern themselves under the existing territorial structure. There were many problems—indeed, Stewart stated that the problems were “too numerous to mention”—as the small territorial government attempted to manage and control the vast expanse of Alaska. Stewart was intimately familiar with prior efforts to pursue Alaska statehood.