Alaska Supreme Court says citizens have no right to petition grand juries for investigations

By DAVID IGNELL

The Alaska Supreme Court notched a huge victory for our local Swamp last week. On the day after Thanksgiving, the Court issued its ruling that Alaska citizens have no right to directly petition grand juries to request an investigation into matters of public welfare or safety.

Their ruling in Garber v. Superior Court was both monumental and unprecedented.  It had no legitimate factual or legal basis to support it.  In the process, the judicial branch aggressively expanded their usurpation of legislative powers, eroded the separation of powers doctrine, and thumbed their noses at ethical prohibitions against conflicts of interest.

The ruling upended a thousand years of legal precedent establishing the grand jury’s independence from the judicial and executive branches.  It removed one of the last meaningful checks and balances to widespread government corruption.  It attempted to strip a key element of constitutional power from the very People who inherently hold the political power of the State.  The members of the Court once again mocked the Constitution they are sworn to uphold.

Citizen rights to grand jury investigations and reports are so important that our Founders enshrined them in Article I of the Alaska Constitution which serves as our own Bill of Rights.  The Founders’ desire to keep our government free from misconduct, malfeasance, fraud, and corruption was a key motivation behind their action.  They overwhelmingly voted that those investigatory and reporting powers shall never be suspended.

Yet the Alaska Supreme Court has been hellbent on a mission to unconstitutionally strip grand juries of these powers since 1985 when a Juneau grand jury recommended that Governor Bill Sheffield be impeached for improperly influencing the award of a $10,000,000 state lease to a political fundraiser.  In 1990 the Court prevented a grand jury from releasing their full report following an investigation of Anchorage School District officials involved in a coverup of a teacher-student sex scandal.

Last week’s ruling was perhaps the final nail in the coffin for whistleblowers and concerned citizens who encounter chaos, conflicts, corruption or cronyism in Alaska only to find out that state officials are unwilling to do anything about it.

To arrive at their decision, the Supreme Court either sidestepped or flat out ignored long established precedent.  For instance, the Court completely avoided the crystal-clear guidance provided in the first Grand Jury Handbook distributed by their predecessors:

“A citizen is at liberty to apply to the Grand Jury for permission to appear before it in order to suggest or urge that a certain situation should be investigated by it.”

This is exactly what Thomas Garber tried to do in 2022.  Garber, an unemployed, disabled sheet metal worker asked Anchorage Presiding Judge William Morse for permission to appear before the grand jury and request an investigation into the Office of Children’s Services. Garber presented Morse with a binder full of evidence in support of his request.

Garber was not the first Alaskan citizen to seek a grand jury investigation into troubling conduct of OCS.  In 2016, Representative Tammy Wilson tried to initiate an investigation, calling OCS a “protected empire” that was “kidnapping” our children.  In 2018, Ray Southwell, a sitting grand juror was prevented by a Kenai judge from presenting evidence to his fellow grand jurors of what he believed to be crimes in OCS cases.

Morse stonewalled Garber until the Alaska Supreme Court could rush through a plethora of restrictive grand jury rules known as Order #1993. Incredibly, this Order designated the Attorney General as the gatekeeper for grand jury access, even though the Attorney General represents state agencies like OCS.  Morse then dismissed Garber’s request, who appealed, specifically calling into question the legality of Order #1993.

The judges hired Thomas Amodio of Reeves Amodio to defend their own legislative-like actions in a matter they would ultimately rule on. Conflicts of interest abounded while separation of power principles were swept to the side.

Garber, without adequate funds to hire an attorney, represented himself.  It was David vs. Goliath but this time around God was not the arbitrator – Goliath was.

Oral argument occurred on July 30, 2024. The Court sat on the matter for the next 16 months before finally issuing its ruling.

Toward the beginning of its 21-page opinion, the Supreme Court asserted the grand jury is under their control and they have the right to impose a comprehensive laundry list of rules on grand jury practice.  The judges called the grand jury “an arm of the Court.”  (The Court didn’t clarify whether the arm they were handing over to the Attorney General was their right or left).  So much for separation of powers.

The Court claimed their usurpation of power over the grand jury stems from Article IV, Section 15 of the Constitution, which gives them power to formulate rules in criminal and civil cases.  But the grand jury is neither of those, and the Court simply glossed over that inconvenient truth.

All criminal cases in Alaska are designated with a “CR” while all civil cases with a “CI”.  Grand jury proceedings are much different though and are designated either with a “GC” or given no number at all.

For instance, Garber’s grand jury request was designated 3AN-22-00001GC.  In the Sheffield investigation there was no case number assigned; all court filings were identified by the date that the grand jury’s term commenced.

These classification systems applied by the Alaska Court System over the past several decades recognize an important distinction that dates back many centuries.  Grand juries evolved through common law and are an independent body, specifically intended to be free from the control of the executive or the judiciary branches of government.

Alaska grand juries exist primarily to curb abuses of power by those branches, so how could they possibly be under the control of the Supreme Court, its extensive rules, and the Attorney General?  The independence of Alaska grand juries is an existential matter.

Garber brought this legal truth to the Court’s attention, citing a century of United States Supreme Court opinions discussing the independent natures of grand juries.  Garber cited the 1992 US vs. Williams opinion, in which SCOTUS stated the grand jury belongs to no branch of government, serving as a kind of buffer or referee between the government and people.

The Williams opinion added, “because the grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such ‘supervisory’ judicial authority exists.”

Other cases cited by Garber included Costello vs. U.S., a 1956 SCOTUS opinion which acknowledged that “the grand jury is an English institution” and “acquired an independence in England free from control by the Crown or judges”, and Blair vs. U.S., a 1919 SCOTUS opinion which stated the grand jury’s “operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.”

The Alaska Supreme Court was silent on Costello and Blair but weakly attempted to sidestep Williams by saying it’s a federal opinion that doesn’t apply to state grand juries.  The Court chose to completely ignore the fact that when our Founders enshrined grand jury powers in the Alaska Constitution, it was federal law that applied in the Territory of Alaska, it was federal practice that governed grand juries here, and it was federal law and practice that our Founders were most familiar with and formed the bases of their opinions.

In sidestepping Williams, the Court also ignored SCOTUS’ recognition that grand jury practice is “rooted in long centuries of Anglo-American history”, not just the U.S. Constitution.  They also ignored that our Founders intentionally expanded the role of grand juries beyond that found in the U.S. Constitution by guaranteeing the right of grand juries to investigate and report on government affairs.

Our Supreme Court even had the audacity to maneuver around our Founders’ unmistakable intent documented by Yule Kilcher’s speech during The Alaska Constitutional Convention.

Who is Yule Kilcher? He escaped rising Nazi power in Europe, settled in Homer, Alaska, and helped write Alaska’s Constitution. He stated that sometimes the grand jury through its investigative powers “is the only recourse for a citizen to get justice.”

Kilcher concluded those remarks by saying, “the grand jury can be appealed to directly, which is an invaluable right to the citizen.”

Morally, I’m not sure which is worse – the Court’s manipulation of law and facts, or Alaska’s former Attorney General Treg Taylor participating in the drafting of Order #1993 and doing nothing to protect the rights of Alaskan citizens being victimized by the State.

In a recent interview about his candidacy for governor, Treg Taylor claimed he was a follower of Jesus.

Jesus threw the moneychangers out of the Temple and stood up for the little guy, Treg.

Jesus would have supported the efforts of Thomas Garber in his fight for justice.

Jesus would have supported the truth being revealed through my requested grand jury investigation into the wrongful conviction of Thomas Jack.

Jesus wouldn’t have wrongfully persecuted the Christians your office did, Treg: AK Mom, Jeff Wall, Tommy Hull (held for six years in jail without a trial), and others.

The question now is what will Treg Taylor’s successor, Stephen Cox, do?  Will he follow the example of Jesus or not?

David Ignell was born and raised in Juneau where he currently resides.  He formerly practiced law in California state and federal courts and was a volunteer analyst for the California Innocence Project. He is currently a forensic journalist and recently wrote a book on the Alaska Grand Jury.