Just got off the phone with an Alaskan Attorney. I’ve been wondering about your AS 39.52.310(h) theory and having a real problem with it. Yes, as a Palin fan, I wouldn’t like it under any circumstances. But I mean as an attorney. There’s a basic problem with your proposal. It works, as they say, too well. Unless you can direct me to it, what language limits the duration of this liability of the Alaskan Executive? There is none in the immediate passage you cite, and a discovery rule written the way you’re interpreting it would produce what is called an “indefinite liability.” That is, 30 years from now, some new bit of data could emerge that would make out a prima fascia case for yet another ethics violation, and she’d be on the hook once again.
That condition of indefinite liability based on a discovery rule is a condition the law abhors. There is really only one area of civil law where it is permitted as the default behavior, and that is product liability, such that industries who do not want to face 50 or more years of liability will work to explicitly limit the range of a discovery-based statute of limitations.
However, if that were a true reading of the law in a political case, and the Palin’s knew it to be so, there would be no motivation to wait for better times. They would never come. If her political future was totally dependent on avoiding further gubernatorial ethics charges, her career would be effectively over now. She could be reined in by nonsense charges for the rest of her life. A court with jurisdiction over such cases would bend over backwards to avoid that outcome by finding a reasonable basis for limiting said liability.
And, according to my new attorney friend in Alaska, who deals with cases directly relevant to the question at hand, there is indeed a de facto jurisdictional limitation, such that the discovery rule would be tied to the term of office. If a new charge were raised, say, three years from now, the argument would be made that jurisdiction for discovery of new violation ended on expiration of the Governor’s term, with the result that the discovery rule and the two year interval after her resignation would be treated as coextensive. Bottom line, July 26, 2011, remains a date of interest, although the attorney did mention there is no known case where such charges were ever brought after a term expired.
I know the way I have structured this is incomplete and less than authoritative, and I do apologize for that, but I do work for a living and right now am focused on other projects. Later, however, I intend to supplement this discussion with more detail. Furthermore, because this is relatively new law in a relatively young state, there is no direct Alaskan precedent precisely on point. So, as part of my supplement, I will do what a judge would do if presented with this case: Look to other states with similar laws and see how those statutes of limitations may have played out under similar circumstances.
Anyway, I thought you’d like to know. And yes, although I have every reason to trust the input of my Alaskan attorney friend, I know I need to work up the supplement with full authorities, so it will be possible to discuss this without reference to anonymous sources. For now, you’ll have to trust me, but if you don’t, no hard feelings. I understand.
The two most pertinant sections are...
(b) A person may file a complaint with the attorney general regarding the conduct of a current or former public officer. A complaint must be in writing, be signed under oath, and contain a clear statement of the details of the alleged violation. (Current or former - with no time window mentioned at all regarding a "former" public officer)
(h) A violation of this chapter may be investigated within two years after discovery of the alleged violation. (Again - no mention at all of a time limitation within which the discovery must occur).
If you want to cite any Alaska law that does put any time limits on the discovery aspect then go ahead...I'd like to see it.
Absent that, I think I'll trust the law as cited above as being accurate.
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Two questions...
1) If there has been no precedent to test the law then how can there be a de facto application of it in place?
I2) If there were in place a precedent for a de facto application of the law would that automatically prevent any person with standing from requesting that the law be applied de jure?