Tuesday afternoon, the Senate Judiciary and State Affairs committees met in joint session to consider Gov. Michael J. Dunleavy’s (R-Alaska) nominee for attorney general, Kevin Clarkson.
Clarkson would be the the 26th attorney general to serve since statehood, serving under 12 governors. The average tenure for jobholders is a little over two years, with former Juneau mayor and attorney general under governors Wally Hickel (AIP/R-Alaska) and Tony Knowles (D-Alaska), Bruce Botelho, serving the longest. He lasted one month shy of eight years between 1994 and 2002.
Clarkson is a household name within Alaska’s legal community. His resuméis vast, spanning a 34-year career in the state. Clarkson graduated Willamette University College of Law in Oregon in 1985 and moved here first in March of that year. “I looked around and I thought, ‘You know, I could do this for a couple years,’” he joked during his introductory statements. “The rest is history. Alaska grows on you. I love Alaska. I couldn’t imagine living anywhere else.”
He worked at Perkins Coie, an international law firm headquartered in Seattle, Washington, with a local office in Anchorage, from 1985 to 1995, then got his name on the door of Brena, Bell, & Clarkson, an Alaska-based, Fortune 500 “Go-To Law Firm for Commercial Litigation.” Clarkson worked there from 1995 until tapped by the governor to be the state’s top cop, though he said it was not a position he sought out.
“After the election, the governor came to my home and spoke to me for a good long time,” the nominee told the committee. “He’s a very persuasive guy, and not just because he’s bigger than I am. I was moved by his description – of his vision – for what he wanted to accomplish for Alaska.”
He said it was Dunleavy’s stated prioritization of public safety and support for law enforcement and prosecutors that won him over. His father served as a police officer in Oregon for 27 years, he said. “So, after reflecting on how good Alaska has been to me and my family, I decided it was time to give back.”
In 2016, Clarkson applied to replace the retiring Dana Fabe on the Alaska Supreme Court, but was passed over by Gov. Bill Walker (I-Alaska) for Associate Justice Susan Carney after scoring 2.7 (on a five-point-scale) on the Alaska Judicial Council’s Judicial Election Survey. It was the lowest ranking among applicants. Carney, on a scale where one point equals “poor” and five equals “excellent,” totaled 4.5 points.
Clarkson noted this in his resumé and during his remarks before the committees, instead pointing to a different measuring stick: the Martindale-Hubbell Attorney Review. Martindale-Hubbell is a national law firm that combines peer and client reviews to offer what they call the “gold standard” in attorney ratings. According to them, Clarkson received an “AV Preeminent Rating,” – the highest ranking – which Clarkson translated to mean “I have the highest professional and ethical standards.”
Speaking to relevant experience, Clarkson took attendees in Juneau and watching from home through his career – which really does set him apart as one of the more experienced nominees in state history:
I’ve represented clients ranging from individuals to small businesses, to Fortune 500 corporations to municipalities [and] boroughs, to electrical utilities to the Alaska legislature itself – groups of legislators and individual legislators. I have represented Native corporations. I’ve represented the State of Alaska itself in the past, even before the Alaska Supreme Court. I have represented Native corporations in regions in Alaska ranging from the North Slope to the Bering Sea to Southeast Alaska – on some significant timber-related issues. I’ve represented and litigated cases against air carriers, large and small. I’ve also had the honor of representing the Alaska Bar Association in cases where I’ve prosecuted ethical grievances against attorneys, and I’ve been appointed by the Superior Court in the past to act as a trustee counsel for winding down the practice of an attorney whose practice, for various reasons, needed to be wound down. And I have participated in and I have chaired both disciplinary and fee-arbitration proceedings for the Alaska Bar Association, adjudicating ethical grievances against attorneys at times. So, over my years I’ve represented all those clients all across Alaska in both federal and state courts, ranging from Ketchikan to Sitka to Juneau to Kenai, Kodiak, Valdez, Anchorage, Palmer, Bethel, Fairbanks, Nome, Kotzebue, and Barrow [Utqiagvik]. I have appeared in courts all across the state of Alaska.
That history has not come without ample controversy, highlighted during questioning from legislators.
The Opioid Epidemic
Dunleavy’s opening salvos as governor have been tough on crime, declaring a “war on criminals” in his first State of the State address and following up the next day with a package of crime-fighting bills aimed at increasing public safety. However, the opioid epidemic was absent mention in both cases. The only reference to the crisis, now over a decade old and claiming 94 overdose-related deaths in 2016, came when Dunleavy offered, “For those Alaskans who have made a mistake and have gotten involved with opiates or other drugs and want help, we are a compassionate people as well. Therefore, as part of our public safety approach we will provide ways for you to break this habit and get back into society and be productive individuals” (emphasis added).
The omits the reality that opioid addiction is often times neither a mistake or a choice.
“In recent years, there has been a dramatic increase in the acceptance and use of prescription opioids for the treatment of chronic [pain]… despite serious risks and the lack of evidence about their long-term effectiveness,” the Center for Disease Control and Prevention (CDC) notes. In 2017 alone, according to the CDC, there were 52 opioid prescriptions per 100 Alaskans. That’s down from a high of 63.5 prescriptions written in 2013 (about 468,000 total), but still significant. The epidemic has also correlated with increased incidences of neonatal abstinence syndrome (a sixfold increase between 2001 and 2012), HIV, and Hepatitis C.
“As we talk about the crime package, I am particularly focused and a lot of my constituents have talked to me about the addiction and the opioid crisis,” Sen. Jesse Kiehl (D-Juneau) told Clarkson. “There are manufacturers who are trying to ratchet down their supplies and folks are really finding themselves in a difficult position between trying to get a handle on the opioid crisis and play their role in that as health care provider in this regulatory decision. Can you help us thread that needle and understand your thought process for a conflict like that?”
“Certainly there is a tension between the legitimate medical uses of those drugs and the pain relief that they provide people,” Clarkson replied. “We have to be very conscious of the fact that there are addiction issues that we have to address and they’re really rampant…. It’s very important that we hold those opioid manufacturers responsible for the situation they’ve created and the opioid epidemic that they’ve foisted upon us.”
Clarkson pointed to a recent lawsuit the Department of Law filed against Mallinckrodt Pharmaceuticals, an Irish company that is the largest manufacturer of opioids in the U.S. The complaint, filed in Alaska Superior Court, alleges that Mallinckrodt engaged in a “deceptive marketing campaign that minimized the risks of opioids, especially the serious risks of addiction, and sought to convince doctors that there was a significant upside to their use for chronic pain by exaggerating their purported benefits.” The State alleges the claims – which Mallinckrodt has stood behind for more than a decade – are unsupported by scientific data, calling them at times “fatally false.”
The suit against Mallinckrodt picks up where the Walker administration left off. Since 2017, the Department of Law has filed suit against McKesson Corporation, Cardinal Health Inc., AmerisourceBergen Drug Company, and OxyContin maker, Purdue Pharma, L.P.
“We have to sort of balance, making sure that those drugs are available for legitimate uses, but also, at the same time, holding the manufacturers responsible,” Clarkson told the committees. “I’m making sure Alaska is compensated for the costs that it has incurred because of that epidemic.”
Senator Peter Micciche (R-Soldotna) spoke to concerns raised by constituents who did not share his – or Clarkson’s – pro-life philosophy. As a lawyer, Clarkson has an extensive record litigating in support of this philosophy.
Clarkson was instrumental in the drafting, litigation, and defense of the 2010 parental consent law. In Planned Parenthood v State of Alaska (2016), he joined the Department of Law in representing the sponsors of Ballot Measure 2 before the Alaska Supreme Court. The State defended the Parental Notice for Minor Abortion Act, which required medical professionals to give a minor’s parent or legal guardian 48-hour prior notice of a planned abortion before performing the procedure. The court found that the law violated the equal protection guarantees in the Alaska State Constitution, and struck it down.
Planned Parenthood Votes Northwest and Hawaii described him in an email to supporters as “another dangerous appointment made by the Dunleavy administration who will roll back our rights, reproductive health care and sex education across our state. Alaskans deserve an attorney general that will advocate for them and the constitution not a religious ideology…. Clarkson has consistently shown a disregard for the reproductive health and constitutional rights of Alaskans during his legal careers.”
However, on Tuesday, he told the committee that the job of the attorney general is “not to bring personal views to the job.” Everyone has personal views, he said. “It’s not a secret that I’m pro-life. But my job as attorney general is to respect the law, to try to advise the governor and various departments [and] the legislature from time to time on what the law is. And the law in Alaska, in respect to [abortion] is based upon the 1997 Valley Hospital decision that a right to an abortion is protected by the Alaska Constitution under the privacy provision. That’s the law. It doesn’t matter if I like it or not.”
Marriage and Equal Protection Jurisprudence for LGBTQ Alaskans
While still at Brena, Bell, & Clarkson, Clarkson helped the Alaska State Legislature draft the amendment to the state constitution defining marriage as “between one man and one woman” (Article 1, Sec. 25). He also arranged expert testimony before the Senate Judiciary Committee on the topic. After the proposed amendment cleared the legislature, citizen groups sued in an attempt to remove it from the November, 1998 ballot. Among them were Jay Brause and Gene Dugan, who attempted to marry in Alaska back in 1994 but were denied their marriage license the following year. The reason for the denial: They were both men.
Clarkson was counsel for the legislature – represented in court by then-representatives Pete Kelly (R-Fairbanks) and Loren Leman (R-Anchorage) – defending the marriage ban. Although the Alaska Superior Court had previously ruled in favor of Brause and Dugan (prompting the proposed amendment), the Alaska Supreme Court, in Bess v Ulmer (1999) allowed it – though they struck a second proposed sentence that would have read: “No provision of this constitution may be interpreted to require the State to recognize or permit marriage between individuals of the same sex.” The amendment would be adopted with over 68 percent of voters approving.
(Brause and Dugan would eventually marry in Alaska in 2015. A year earlier, District Court Judge Timothy Burgess ruled in Hamby v Parnell that the 1998 marriage amendment violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.)
Clarkson went on to represent the state in Thomas v Anchorage Equal Rights Commission (1999), in which he argued that forcing apartment owners to rent to unmarried couples (at this time, same-sex couples were prohibited from marrying) violated Christian landlords’ rights under the Free Exercise Clause of the First Amendment to the U.S. Constitution. (Footnotes in the case included Bible passages, such as 1 Thessalonians 4:3-4: “It is God’s will that you should be sanctified: that you should avoid sexual immorality[.]”)
Clarkson would also represent the “Defense of Marriage Coalition” in Li v State of Oregon (2005), a case brought by the ACLU seeking an end to the state’s exclusion of gay and lesbian couples from marriage rights. He would defend a similar case in Alaska the same year, Alaska CLU v State of Alaska, as he described, “helping to defend the State of Alaska’s employment benefits program that provided benefits to spouses of state employees who are married consistent with the Alaska Marriage Amendment[.]” In both cases, he was unsuccessful. In 2015, the landmark civil rights case, Obergefell v Hodges, the Supreme Court would rule that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution guarantees that the right to marry, and all the protections that come with it, extend to same-sex couples.
In 2004, Dunleavy’s nominee was a featured speaker at the American Bar Association’s national convention in Atlanta, specifically to address, according to his resumé, “constitutional issues related to ‘same-sex marriage.’”
“If a bill were to come that would further restrict or curtail those [marriage] protections under the constitution now, either from the legislature or from the governor, how would you counsel him on that?” Sen. Scott Kawasaki (D-Fairbanks) asked Clarkson.
“My advice to the governor will be based on what the law is,” he answered. “The Obergefell decision from the United States Supreme Court is the law of the land, so that is exactly how I would advise the governor at this time.”
“At this time” is a qualifier that might linger in one’s mind.
Alliance Defending Freedom
In January of last year, Amanda Coyle filed a complaint with the Anchorage Equal Rights Commission alleging she was discriminated against by an Anchorage homeless shelter, the Downtown Hope Center, based on her gender. Coyle identifies as a transgender woman and says that, because of that, she was denied housing.
The Hope Center contends Coyle was denied entry because she showed up inebriated and after hours. Shelter workers footed the bill for cab fare to a hospital to treat a wound she had incurred during an alleged fight that took place at another shelter. Coyle returned to the shelter the next day, reported The Anchorage Daily News, and was again denied access.
The Alliance Defending Freedom (ADF) – an Arizona-based Christian conservative legal nonprofit – jumped on the case, defending the Hope Center’s right to discriminate based on a deeply held religious belief (that runs counter to Anchorage’s anti-discrimination law).
ADF is in the news a lot. The group has succeeded in a variety of cases argued in front of the U.S. Supreme Court, including Masterpiece Cakeshop v Colorado Civil Rights Commission (2018) – where the court ruled in favor of a cake shop owner’s right to refuse service to same-sex couples – and Burwell v Hobby Lobby (2014) – where the court ruled that for-profit companies are entitled to deny contraception coverage to employees based on a religious objection.
In Alaska, ADF represented the Kenai Peninsula Borough in a lawsuit brought by the ACLU challenging the KPB Assembly’s invocation policy which, wrote Elizabeth Earl for The Peninsula Clarion, required “anyone offering a prayer before the assembly’s regular meetings to be part of an organization that meets regularly to share a religious perspective or a chaplain[.]” Arguing the KPB’s case alongside ADF was Clarkson, independently contracted by the borough in his capacity as a lawyer with Brena, Bell, & Clarkson.
ADF has partnered with the anti-gay Alaska Family Council/Action (AFC/A) as far back as 2013. AFC/A president Jim Minnery described them that year as “the premier Christian legal defense ministry in the nation specializing in issues related to religious liberty, the sanctity of life and traditional marriage.” Clarkson is a past board member of AFC/A, the group that would sponsor and advocate for Proposition One – Anchorage’s bathroom bill – last year. The initiative attempted to restrict “access to facilities such as locker rooms and bathrooms on the basis of sex at birth rather than gender identity.” It failed, 53-47 – the first such proposal in the nation to lose via popular vote.
The Southern Poverty Law Center, a nonprofit legal advocacy organization specializing in civil rights and public interest litigation, has listed ADF as an “anti-LGBT hate group,” describing the group as “a legal advocacy and training group that has supported the recriminalization of homosexuality in the U.S. and criminalization abroad[.]”
SPLC cites, in particular, ADF’s defense of “European laws requiring the sterilization of transgender citizens seeking administrative recognition of their preferred gender.” Such policies are codified in more than a dozen European countries. SPLC specifically called attention to a 2016 French law, supported by ADF, required two transgender applicants to “undergo an irreversible identity change through an operation or sterilizing treatment in order to correct their ‘sex’ designation at birth.”
In April of 2017, the European Court of Human Rights ruled in favor of the transgender defendants who had been barred from changing the names and genders on their birth certificates because they had refused to undergo sterilization. In 2015, however, ADF International filed the equivalent of an amicus brief opining that the court should uphold the law, warning that “the definition of what it means to be identified as a transsexual individual will differ between member states” and striking down the law could result in “human rights imperialism.”
ADF has maintained, including in a Washington Post article (more on that in a bit), that it is “against the forced sterilization of anyone” and that the case was more about European states’ rights.
As recently as 2014, Blackstone Legal Fellowship, a legal training group and internship developed and facilitated by ADF, featured a quote that read, in part, “Alliance Defending Freedom seeks to recover the robust Christendomic theology of the 3rd, 4th, and 5th centuries.”
(Alaska Family Council/Action is also categorized by SPLC as an anti-LGBT extremist organization.)
“You have been associated for some time with a group called the Alliance Defending Freedom. You’ve made some very complimentary statements about them and their work,” Sen. Kiehl said during the hearing, noting that constituents had registered their concerns with his office. “They point out that the Alliance Defending Freedom has supported criminal penalties for homosexuality, both in the U.S. and abroad, has defended state-sanctioned sterilization of transgendered [sic] people. So, I’d like to know your level of continued involvement and your commitment to those issues.”
“I have worked with and served on committees for the Alliance Defending Freedom,” Clarkson replied. From 1997 to 2005, Clarkson served as a speaker, teacher, and attendee regarding various constitutional litigation issues for the Alliance Defense Fund, National Litigation Academies. He was a featured speaker at the 1997 Alliance Defense Fund Summit in Washington, D.C., on the topic of “Why an Organized Defense of Religious Liberty is Necessary.” Senior counsel for ADF, Joe Infranco, told the Anchorage Daily News‘s James Brooks that Clarkson exhibited a “burning desire to serve God in his practice” and was “one of the leading luminaries in the fight for religious freedom in Alaska.”
Clarkson added, in response to Kiehl, “I can tell you that I am aware of absolutely nothing involving [ADF’s] support of criminal penalties for any sort of lifestyle choice an individual might make and I’m not aware of any support for sterilization of any individual, period. So, if that’s true, I’m completely and totally unaware of it and I’d be shocked if it were true. That’s not the organization I’m familiar with” (emphasis added).
Kiehl asked, in follow up, if he independently supported any such positions. “Those sounds like things that, no I wouldn’t support those things at all,” he answered. “Not at all.”
“I will just say, in my bit of research, that some of the confusion about the Alliance Defending Freedom stems from the Southern Poverty Law [Center] condemning it as a hate group,” Sen. Shelley Hughes (R-Palmer), chair of Senate Judiciary, interjected. “And I’ll just let you know, in November of this last year, even The Washington Post came out and said that was an inappropriate assignment to that group. They are simply a group that are protecting what they believe is liberty. Some of that confusion is because of that.”
However, the Post article Hughes referenced, an article written by David Montgomery and entitled “Is the Southern Poverty Law Center Judging Hate Fairly?,” does not say this – nor is it anywhere close to the lone article available among established news organizations concerning ADF.
Montgomery correctly notes SPLC’s definition of a hate group as “’an organization that – based on its official statements or principles, the statements of its leaders, or its activities – has beliefs or practices that attack or malign an entire class of people, typically for their immutable characteristics,’ including race, religion, ethnicity and sexual orientation. It’s a standard that is in line with the latest thinking among scholars of hate, and also one that intentionally parallels the FBI’s definition of a hate crime.”
He also noted correctly that it wasn’t ADF’s Supreme Court victories that earned the group the distinction. “Instead, a major strike against the group was its decision to file an amicus brief in the 2003 landmark Supreme Court case that struck down a Texas law criminalizing gay sex. The ADF wanted to uphold the state’s right to decide whether ‘it is reasonable to believe that same-sex sodomy is a distinct public health problem,’ according to the ADF’s brief. ‘It clearly is.’”
Ultimately, the article concludes that “both sides of the debate over the meaning of ‘hate’ continue to make their cases to the public and, specifically, to donors — ensuring that the war will go on…. [H]ate, like so much in American life, has become highly ideological. In this climate, seeking widespread credibility for a hate list — with its inherently blunt methodology — seems at once quaint, noble and, possibly, futile.”
Limits of the Office
Alaska’s executive branch broad powers in Article 3 of the state’s constitution. Department heads serve at the pleasure of the governor, and attorneys general are no exception. Nothing in Alaska’s founding document or state statutes say Dunleavy has to listen to his chosen counsel.
As detailed in Vic Fischer’s Alaska’s Constitutional Convention (1975), George McLaughlin, a lawyer, legislator, and Constitutional Convention delegate, said of the office, “The attorney general is a lawyer and his opinion is the equivalent of any other lawyer’s… Any recommendation he makes, if acted upon, can always be attacked in the courts by private citizens…. His functions are not quasi-judicial. He is another attorney giving an opinion.” Clarkson seems to agree.
“The attorney general’s job is to advise the governor as to what the law is. That’s the most an attorney general can do: tell a governor what the law is, advise him or her of that, and then it’s up to the governor to make decisions about policy,” he told the committees. “If Governor Dunleavy doesn’t agree with my legal advice, I can’t put him in a headlock and stop him. I mean, he’s too big for me to do that anyway. But, my job is to give him the best legal advice I can.”
When the political ideology of the administration butts heads with a minority of lawmakers, dissent is destined to occur, and that could very possibly translate to votes against Clarkson’s confirmation by Democrats. But his experience and assurances given in committee – plus the general lack of online vulgarity and lies on his resumé – all but afford him the votes necessary to become the state’s next attorney general. What that ultimately means is unknown, to borrow a phrase, “at this time.”