So I think he will agree to the subpoena right at the moment that Branchflower is ready to turn in his report to the legislature in order to further delay it.

The curious thing is that Branchflower is scheduled to turn in his report on Friday but it would seem that doing these interviews will set that timetable back some. I'm not sure how much more information will come from these interviews - not likely anything more explosive than than the statements given in interviews of Wilkes and Grasso.

It may be that the next shoe to fall would be Frank Bailey as they clearly will want to scapegoat him. He was the one who actively applied pressure to others and was the one on the audio tape.

This isn't just about national politics, it's about the fate of the poor Alaskans that are the ball in this political ping pong game.

Is this woman qualified and should she be entrusted with ANY governmental position is the real question.

Most of the points in the appeal papers turn on whether the legislature is authorized to create the commission, and the trial judge  quoted the statutes and said that the various ways the legislature exercised the power the statutes give it were for the legislature to determine. Even the want of due process claim relates to whether the proper legislative committee is doing the investigation. Even the claim of political conflict of interest is one which by statute is relegated to the legisltive committee on Ethics, according to the opinion.

Given the grounds for the appeal, the fact that the hearing on appeal is scheduled for Wednesday, before the stay expires and that the decision is promised before the stay expires, suggests that either there is a simple legal answer to this, one way or the other. Otherwise, the appeal would not be completed within a single week. The decision will be interesting for those who can tolerate the dull, but the plaintiffs are limited to the grounds they gave, and to the materials presented to the original court.

The appeal and the original case which pitched out the Palin via legislative surrogates' investigation complaints, presented itself as a Motion to Dismiss. For those who live wiser lives than lawyers, a Motion to Dismiss is a motion addressed to the initial complaint in a litigation, and demands the court to determine whether the complaint pleads enough on its face, that is, when read literally, to make anyone go to the effort of in fact proceeding with the litigation. Generally a motion to dismiss considers only the complaint and whatever the parties lay on in the moving papers or opposition, and the wise litigator throws his evidentiary facts into his affidavits on the motion or as attachments to the complaint and makes sure he files a brief on the motion about the validity of his legal grounds. Since the plaintiffs asked for emergency handling of their injunction application, it is conceivable but bad practice for them not to have made sure their facts and legal arguments were in the papers, and poor form to say that after they moved for quick handling, it resulted in their not having the opportunity to do something; it was their choice to go through this in fast forward.  One of the complaints on appeal is that the judge on a motion to dismiss did not hold a hearing and take witnesses from the appellants. This is not usually what a motion to dismiss is supposed to do, although there may well be argument. I don't give great odds on this particular claim being accepted.

What the decision said was as a matter of law, the case was not justiciable, not one a court should entertain, as it improperly infringed on the internal operations of a cognate branch of government, the legislature. There is one leading case in Alaska on this, Malone v. Meekins, and only three others which I found. The critical language here in Malone Meekins is language which says that except in exceptional circumstances such as  where "the rights of a person not a member of the legislature" are affected by the way the legislature does its internal business, disputes about whether the legislature violated its rules or statutes applicable to it is not justiciable.  I have only found one case considering this language, where someone not a member of the legislature got the Malone case cited. (Four cases counting Malone in which the issue has arisen). Malone was a case which turned on the procedures the legislature used to remove a Speaker. Two were versions of open meeting issues.

The third case was Van Brunt v. State of Alaska, in which the Appellant was convicted of drunk driving, and contended that he could not be convicted because of irregularities in the enactment process  of the statute under which he was convicted. He lost on appeal In that case, the Court said if a certain rule involved the rights of others as related to how a statute was amended, that rule would have to be read liberally.

The grounds for emergency appeal by the six legislative surrogates for Palin  specifically cited the vice presidential campaign and the possible effect of the issuance of the report on that campaign, and asserted an Alaska Constitutional right, Article I sec. 7 which grants to Alaskans a "right to fair and just treatment in the conduct of legislative investigations." So far, so good. Constitutional violations are bad. However, the appeal claims that what denies fair and just treatment is the failure of the legislature to follow the statutes, rules and regulations which the legislature has enacted to apply in legislative investigations. It appears but is  not so stated in the papers that in some manner the investigation is claimed to improperly 'affect' the 'rights' of the third party, but does not state what that right affected is. The statutory provisions cited are the mechanical rules by which the legislature operates, and no specific statute or violation is enumerated in the appeal. A form of hail mary to the appeals court saying there's a violation of the statutes in there somewhere.   Hello Malone v. Meekins. I see in the papers no factual claim as to what 'rights' of one not a member of the legislature are in fact affected, other than the effect on the November election.

This is where the problem is. The only factual  effect which appellants cite as affecting a person not a member of the legislature is the possible effect of the final report on the Vice Presidential race, because of its timing, constituting an "October surprise," and remarks of Legislator French that the report may have an effect on the campaign. There are no claims of improper conduct of the investigation itself, and the subpoena validation was not appealed. The statement of grounds for appeal, not for that in emergency charge that Mr. French improperly conducted the investigation with the intent of affecting the November 4 election.  That's it. The court below found as a fact no violation of the 'fair and just' provision without discussing the  factual basis for the finding.

Note that the investigation was authorized on July 28, a month before the nomination.

The other appeal grounds include misinterpreting Malone v. Meekis, various claims which seem to be that the legislature does not have the power to investigate "abuses of power and/or improper actions by the executive branch," and a possible removal of a governor by reason of statutory provisions, and that all rules must be followed strictly when  not the 'rights' of third parties are involved, but where a third party is involved in what is being investigated or is impacted by what is being done, without reference to any 'rights' of that person.

IMHO the litigators pushing the appeal are praying loudly for the court to find anything at all to delay or derail and a desire by judges to do a Bush v. Gore for the good of the GOP, and they have darned little to do it with. there are no AK cases which I found which limit the right of the legislature to investigate because of electoral consequences on those investigated. And nowhere in the appellate papers did the appellants claim there was no factual basis for the investigation.