Recall Dunleavy campaign has a legal edge on specifics

As Attorney General Kevin Clarkson tries to assemble a case against the recall of Gov. Mike Dunleavy, he will be tempted to reject or ignore the work of his predecessors in analyzing election law.

That would be a mistake and it would increase the chances that Clarkson will lose in court.

In particular, Clarkson needs to study the strong legal arguments made by the attorney general in opinions issued in 2011 about the recall of Rep. Kyle Johansen and 2013 about the recall of Rep. Lindsey Holmes.

Anyone interested in the recall or the precarious state of the Dunleavy administration or the history of Alaska recall efforts should read those documents.

It’s ironic that both were written by assistant attorney general Libby Bakalar, an expert on election laws who was fired by the Dunleavy administration because of her off-duty political and social commentary.

The Holmes and Johansen recall efforts failed to pass muster with the attorney general because the grounds cited for recall dealt largely with political matters in which discretion and opinion were overriding factors.

That is not the case with the Dunleavy recall, the lawyers for which have adopted the lessons from past failed recall campaigns and created specifics that will be much harder to challenge. Unlike many past campaigns, political emotions did not control the authors of the official recall statement.

For instance, the recall against Gov. Wally Hickel accused him of being overly forgetful, which was a hard thing to prove and an easy thing to dismiss on legal grounds.

With 49,000 signatures submitted to the state Thursday, the recall campaign has instantly become a political force to be reckoned with. The lawyers working on the recall are Scott Kendall, former AG Jahna Lindemuth, Jeff Feldman and Susan Orlansky.

Kendall said they have asked the state to respond in a month, which is a reasonable request and one that Lt. Gov. Kevin Meyer and the Division of Elections should be able to meet.

The strongest claims made about Dunleavy are that he refused to follow a state law that required him to appoint a judge within 45 days and that he vetoed $335,000 for the court system because he didn’t approve of certain court rulings about abortion. Dunleavy eventually backed down on the judge, but repeated his court attack.

Clarkson has already taken his case to newspapers with a claim that Dunleavy can veto anything he wants. “Courts are not supposed to address political questions,” he said.

The hole in that balloon is that Dunleavy announced he wanted to punish another branch of government, which is a different matter. Had Dunleavy kept quiet about his motives, this would not be a separation of powers issue.

In the Holmes and Johansen cases, the grounds were open to debate, which is made clear from the Bakalar opinions.

Holmes was targeted because she changed political parties, a decision that offended backers of the recall. Johansen was targeted because he declined to cooperate with other legislators and was accused of behaving in a juvenile manner. In both of these instances, the specifics cited by the recall proponents were open to debate.

“It is worth noting that in enacting the original recall statutes, the legislature intentionally excluded grounds such as ‘favoritism,’ ‘carelessness,’ ‘extravagance,’ ‘inability,’ ‘selfishness,’ and ‘no benefit to public,’ from the four statutory grounds for recall ultimately chosen—implying that only true and manifest malfeasance should subject a legislator to recall,” Bakalar wrote for AG John Burns in 2011.

The only other statewide recall of note in Alaska was aimed at Hickel and Lt. Gov. Jack Coghill, but it never reached the ballot.

Coghill’s portion did end up in court, however, and Fairbanks Superior Court Judge Richard Savell found that Coghill’s public admission that he had never read the election statutes—cited by the recall backers as evidence of incompetence—was a sufficient reason for a recall.

“In reviewing this allegation for sufficiency, Judge Savell found that ‘incompetence’—under a liberal construction and commonsense meaning of the term—’must relate to a lack of ability to perform the official’s required duties.’ He found that knowledge of election laws is directly related to the statutory duties of the lieutenant governor,” Bakalar wrote.

Under state law, the lieutenant governor is responsible for overseeing state elections and guarding the state seal.

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