Dunleavy recall drive awaits verdict by Dunleavy administration

We should know Monday or Tuesday if the Dunleavy administration will allow the Dunleavy recall campaign to proceed or if it will invent legal excuses to add court delays to a process that has already gone on too long.

The next step is to gather more than 71,000 signatures, which would force an election on whether Dunleavy should be removed from office. I’m guessing that Attorney General Kevin Clarkson will try to buy time for his boss by concluding that the effort is illegitimate.

On Sept. 5, the recall campaign submitted 49,006 signatures to the Division of Elections applying for a recall petition to remove Dunleavy. There is no specific deadline to act on an application for a recall petition, but the state is using the provision in state law that deals with initiatives—requiring action by the state “within” 60 calendar days—as a benchmark. This should have been finished weeks ago, as more than 20,000 extra signatures were submitted.

The Alaska Constitution has only these two sentences about recalling public officials: “All elected public officials in the State, except judicial officers, are subject to recall by the voters of the State or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by the legislature.”

The Legislature filled in some of the blanks years ago, but left others to the courts.

For instance, the lack of a clear deadline in state law for deciding on this first part of the recall is one indication of a long-running problem with the process in Alaska. As the Alaska Supreme Court wrote in a key 1984 decision, the recall laws in Alaska are ambiguous and “the need for judicial participation in the recall process could be decreased by more carefully drawn statutes.”

The Legislature and the executive branch have been reluctant to focus time and energy on the recall statutes because this is a subject that hits too close to home for public officials. This failure has created the “need for judicial participation,” as the Supreme Court said in that 1984 ruling.

The court said it appears that Alaska aimed for a middle ground in the world of political recall, between one extreme that provides strong protections to office holders and another extreme that says any and all recall efforts should be placed before the voters to have them decide.

The court said that recall statutes “should be liberally construed so that ‘the people [are] permitted to vote and express their will.’”

In a 2013 analysis by former Assistant Attorney General Elizabeth Bakalar, who was fired by the Dunleavy administration, a decision that led to a lawsuit, she quoted the court about wanting to avoid “wrapping the recall process in such a tight legal straitjacket that a legally sufficient recall petition could be prepared only by an attorney who is a specialist in election law matters.”

State law says this about whether a recall is to proceed past the application phase: “The grounds for recall are (1) lack of fitness, (2) incompetence, (3) neglect of duties, or (4) corruption.”

The director of the election division, probably relying on whatever Clarkson claims, is to decide if the recall application meets at least one of those four grounds.

There have been a handful of court decisions, including Meiners vs. Bering Strait School District, that suggest this campaign surpasses the legal standard. The courts have shown a tendency to lean toward allowing the voters to decide when real legal issues exist.

In 1993, Fairbanks Superior Court Judge Richard Savell ruled that a recall petition against Lt. Gov. Jack Coghill could proceed. The recall supporters said that Coghill was incompetent and cited his public statements that he had not read the elections laws as evidence.

“He found that knowledge of election laws is directly related to the statutory duties of the lieutenant governor. As such, Judge Savell concluded that the allegation regarding failure to read the election laws was legally sufficient,” Bakalar wrote.

The Coghill recall died for lack of public interest, but the court precedent is significant.

The specific grounds identified by the Dunleavy recall campaign are much stronger than those deemed suitable in Coghill’s case. The legal questions are fairly simple and the courts will not allow the governor to drag this out for years. The recall application charges neglect of duties, incompetence and lack of fitness.

Craig Richards, the former state attorney general now working to defend Dunleavy, wrote a newspaper column the other day in which he said the grounds for recalling Dunleavy “are a hodgepodge of accusations, none of which appear legally sufficient,” to pass muster. I don’t think he’s spent much time looking at the court records.

Richards must be the new co-chair of the Wishful Thinking Division of the Dunleavy defense league along with Republican Party blogger Suzanne Downing, who claims “history gives no particular hint about how the judges would rule” on the recall.

The Wishful Thinking Division claims this is all politics and the legal grounds are irrelevant. But history gives strong hints that the legal grounds are all that matter, not the politics of budget cuts that have added emotional intensity to the campaign.

The strongest claim against Dunleavy is that he “violated Alaska law by refusing to appoint a judge to the Palmer Superior Court within 45 days of receiving nominations.” There is no dispute that he did not follow the law, though the Wishful Thinkers say he was “negotiating” when he announced in a letter March 20 that he was refusing to follow the Alaska Constitution.

Here’s an idea. If you rob a bank, try telling a judge that all you were doing was “negotiating” a withdrawal.

Joel Bolger, chief justice of the Alaska Supreme Court, released a statement March 22 that said the governor’s office “does not understand the constitutional requirements” at the heart of the appointment issue. Dunleavy backed down and agreed to follow the law.

The other strong legal recall argument, now the subject of a lawsuit, is that Dunleavy violated the separation of powers doctrine by vetoing $334,700 from the court system in retaliation against the court system.

It didn’t take Inspector Clouseau to run this one down because it was Dunleavy himself who said he was trying to punish the courts with his veto: “The Legislative and Executive Branch are opposed to State funded elective abortions; the only branch of government that insists on State funded elective abortions is the Supreme Court. The annual cost of elective abortions is reflected by this reduction.”

Dunleavy doubled down on his retaliation by repeating the identical language during his second round of vetoes in August.

Clarkson, who appears to do most of his writing for newspapers, wrote a column in July that seemed to include what he believes to be his best counter-argument about the retaliation veto: “Any argument that the governor cannot exercise his expressly granted constitutional power to veto particular line items in the state’s annual budget is pure rhetoric with no basis in law.”

The argument is not about the governor’s ability to veto, but about taking an action against the court system because it ruled in a way the governor didn’t like.

Here is the list of recall grounds submitted to the state: