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While reading a suit filed last month against his clients — members of an Alaska legislative body investigating the dismissal of the state’s director of public safety — Anchorage attorney Peter Maassen wondered why two lawyers from 4,000 miles away were serving as counsel to six Republican Alaska lawmakers who filed the petition. Of course, the focus of this Alaska state court suit is no ordinary politician. The Sept. 16 suit, Keller, et al. v. French, et al., seeks an injunction against Maassen’s client, the Alaska Legislative Council, which is investigating Alaska governor and Republican vice presidential candidate Sarah Palin’s July 11 decision to dismiss the commissioner of the Alaska Department of Public Safety. And a Google search Maassen performed on his opposing counsel revealed to him something many Texas lawyers already know: Kelly Shackelford and Hiram Sasser, attorneys with Plano’s Liberty Legal Institute, are well known in the Lone Star state for representing numerous plaintiffs in religious-freedom cases. Still, what interest would Shackelford and Sasser have in this case, Maassen asked himself. “I just thought, why would these lawyers with liberty in their firm name come up to Alaska to tell us that our Legislature has no authority to investigate abuses by the executive branch?” says Maassen, a partner in Ingaldson, Maassen & Fitzgerald. “I can only conclude that liberty means something else in Texas than it means here.” Shackleford says Liberty Legal, an organization he founded in 1997, exists to prevent abuses of governmental power wherever it sees them. But beyond that, Liberty Legal got involved in the case pro bono at the request of Kevin Clarkson, a partner in Anchorage’s Brena Bell & Clarkson, who is the lead lawyer for the six Republican legislators. Clarkson and Shackelford have been friends for 15 years since they both spoke at a conference sponsored by the Alliance Defense Fund, an Arizona-based legal organization that supports socially conservative causes, Shackleford says. “If Kevin hadn’t called us and Kevin wasn’t up there, we wouldn’t be involved,” says Shackelford, who helped file the case after making a pro hac vice motion. “This is a guy who opposes the government when they step out of line, and he asked for help. If the egregious violations weren’t there, we wouldn’t be involved.” And both Shackelford and Sasser says their involvement in the case has nothing to do with Palin’s candidacy or her very public evangelical faith. “We don’t represent her. And it’s not really about her, it’s about these witnesses” that have been called before the Alaska Legislative Council, Shackelford says. “It’s about people that get dragged before a body without due process.” Keller, et al. v. French, et al., seeks injunctive relief in an Alaska superior court and claims the Alaska Legislative Council is conducting a “McCarthy”-like investigation into Palin’s July dismissal of Walt Monegan, commissioner of the Alaska Department of Public Safety. In the petition, the plaintiffs accuse the Alaska Legislative Council of an “abuse of power” by conducting the investigation — one that violates the separation of powers doctrine in the Alaska Constitution. Maassen says his clients deny all of the legal claims the Republican legislators make in the suit and adds that the Alaska Legislative Council has a perfect right to investigate the executive branch. The Alaska Legislative Council’s investigation has been national news since Aug. 29, when Republican presidential candidate John McCain selected Palin as his running mate. The case has since been referred to as “Troopergate,” as one of the aspects the legislative counsel is investigating is Monegan’s refusal to fire Alaska State Trooper Mike Wooten, Palin’s former brother-in-law, according to the plaintiff’s petition. The petition also alleges that the investigation, the politicians behind it and the council’s yet-to-be-released final report are aimed at damaging Palin’s national political campaign. Alaska trial court Judge Peter Michalski of the third judicial district in Anchorage, dismissed Keller, et al v. French, et al. on Oct. 2, a decision the plaintiffs appealed directly to the Alaska Supreme Court, as the state has no intermediate appellate civil courts. But a day after Maassen and Clarkson argued before the high court, the Alaska Supreme Court issued a short order on Oct. 9 affirming the lower court decision dismissing the case. An opinion will follow, according to the order. “They weren’t able to take me down, and there were a lot of them,” Maassen says of the Texas lawyers. But Shackelford says, while he can’t comment on the substance of the decision until a full opinion is released, he and his clients did accomplish something. “No matter what this ruling says or does, one of the things this does is a lot of unseemly behavior is exposed,” Shackelford says. Calling Friends Clarkson says he called his friends at Liberty Legal for help because of their experience in constitutional law — even though Keller, et al v. French, et al. involves Alaska’s Constitution, a document Shackelford and Sasser don’t normally deal with. “The way I looked at it is, yeah, typically they focus on freedom of speech and the 1st Amendment. But it’s sort of like working on an American-made car: If you can work on one brand of car, you can work on another brand of car,” Clarkson says. “And these guys are like mechanics.” And besides, Clarkson says, Liberty Legal gets results. For example, Liberty Legal represented a pastor accused by a woman of defamation and negligence, among other claims, after the pastor divulged to the congregation that the woman had an affair. And last year, the Texas Supreme Court agreed with Liberty Legal in a unanimous decision in Westbrook v. Penley that the woman could not bring secular claims against the pastor, because the claims failed to “override the strong constitutional presumption that favors preserving the church’s interest in managing its affairs.” It’s not the first time Clarkson says he has called on Liberty Legal for help in his home state. Last year, Clarkson represented the state of Alaska before the Alaska Supreme Court against a challenge to a 1997 state law that required teenagers to get parental consent before they could get an abortion. The Alaska high court eventually ruled that the law was unconstitutional in a 3-2 decision. Sasser made a seven-and-a-half hour flight to help Clarkson prepare for the parental-notification argument in that case, Clarkson says. And Sasser was on that long flight again last week to help Clarkson prepare for argument in Keller, et al v. French, et al. Sasser says his interest in this case is purely a constitutional one — an Alaskan one at that. “When I first took a look at this case, I said, under most states’ constitutions, there’s no special provision for legislative investigations,” Sasser says. But there is in Alaska’s Constitution, he says. It requires that “the right of all persons to fair and just treatment in the course of legislative . . . investigations shall not be infringed” — a highly unusual state constitutional provision, written in the wake of U.S. Sen. Joseph McCarthy’s infamous attempts to expose communist sympathizers through Congressional hearings in the early 1950s, Sasser says. Only one other state, Michigan, has a similar provision in its constitution, he says. “The Alaska Supreme Court has never interpreted the fair-and-just clause as it applies to legislative investigations. It’s a case of first impression, it’s a neat case, and it has all of the constitutional law fun and intrigue that I would look for in a case,” Sasser says. “The position we’ve taken isn’t necessarily that there can’t be an investigation, it’s just that it must be conducted in a proper way,” Sasser says. “And this was conducted in violation of the Legislature’s own rules,” he says, citing comments by one of the senators on the Alaska Legislative Council who told the press in an interview that Palin should get ready for an “October surprise” when the report was released. The report has yet to be released. Maassen say the plaintiffs have taken the comments of the senator out of context. In a brief he filed in the Alaska Supreme Court on behalf of his client, Maassen maintains the plaintiff’s attempt to draw a picture of “a McCarthyistic investigation run amok” is “desperate.” Politics and Pro Bono After helping Clarkson file the petition, Shackelford and Sasser brought even more Texas lawyers into the fight. Three attorneys from the Dallas office of Gibson Dunn & Crutcher are also assisting the plaintiffs. There are now more Texas lawyers of record involved in Keller, et al v. French, et al. than Alaska lawyers. On Sept. 14, Shackelford called Malachi Boyuls, a newly hired associate in the Dallas office of Gibson Dunn & Crutcher, to see if he’d be willing to assist in the case. Boyuls, who recently clerked for U.S. District Judge David Godbey of Dallas, says the case was of immediate interest to him. Boyuls says he knew Shackelford through a mutual friend at Watermark Community Church, where Boyuls worships. Boyuls says the constitutional issue in the case, not politics, was the reason he agreed to help Liberty Legal. “It is highly political. It’s been made to be that way. But it’s an interesting constitutional question,” Boyuls says. “And it’s unusual because of the way their constitution is written. It’s an opportunity to get in on something that you don’t see very often.” Boyuls had to get the approval of Gibson Dunn’s pro bono committee before accepting the case. And he had to work on the case under the supervision of one of the firm’s partners. The pro bono committee approved the case, and Scott Hoyt, a partner in the firm’s Dallas office, joined the case along with Ashley Johnson, another recent associate hire at the firm who has clerked for U.S. Supreme Court Justice Clarence Thomas and 4th U.S. Circuit Court Judge J. Michael Luttig. “I had been following this thing in the press and, given the opportunity, I thought it would be something interesting to get involved in,” says Hoyt, who is supervising his firm’s involvement in the case but notes that “Malachi and Ashley have done the heavy lifting.” Hoyt made an appearance in trial court on the case, while Boyuls and Johnson stayed in Texas – Boyuls is expecting a new baby, and Johnson just had one, he says. While all of the Texas attorneys say they did not agree to sign on to represent the six Republican Alaska lawmakers for political reasons, Scott Edelman, partner in Gibson Dunn’s Century City, Calif. office who chairs the firm’s pro bono committee, says Gibson Dunn lawyers are free to get involved in whatever pro bono work they like, no matter what kind of politics are involved. “A case like this, there were lawyers in our Texas office that were interested in this issue and this work,” says Edelman, who notes his firm has also handled pro bono cases supporting Democratic-leaning causes such supporting minority groups in voting rights cases, he says. “They ran a standard conflicts check, consulted me as head of the pro bono committee, and my view was, as long as it’s pro bono work, as long as it’s legitimate and you want to pursue it, go ahead.” However Maassen doubts politics has no link the Texas lawyers’ interest in the case. Had Palin not become a Republican vice presidential candidate, he doubts the case would be much interest outside of Alaska. “I think we all know what their real interest in this case is,” Maassen says. “And it’s not the intricacies of Alaska’s separation of powers.”

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