Voters should decide incompetence, neglect charges against Dunleavy

The written opinion by Anchorage Superior Court Judge Eric Aarseth released Tuesday should dispel the false claim by Gov. Mike Dunleavy that he faces a recall for which no legal grounds have been established.

“If this is to stand, what happens now is there’s really no standard, no hurdle to be recalled. This becomes a political recall, and you can be recalled for any reason at all, ” Dunleavy said Friday.

Dunleavy says the court ruling is “problematic.” One big problem is that Dunleavy is misrepresenting the situation. The Anchorage court ruling follows legal standards established by state statute and court precedent over decades.

It should be up to the voters—not the courts or the attorney general who owes his job to Dunleavy—to decide whether the reasons in the recall petition provide good cause to remove the governor or keep him in office.

Dunleavy would be more informed by reading Aarseth’s detailed 18-page decision, published Tuesday, which explains why the recall proponents have the right to see if they can gather the 71,252 signatures of Alaska voters needed to get the recall question on the ballot. That is not an easy hurdle to clear. Neither is getting a majority of the votes on Recall Day to remove a public official.

Aarseth said four of the five charges are strong enough that the voters have a right to judge their merits.

“This decision best preserves the right of the voters,” Aarseth wrote. “The Alaska Constitution gives the voters great power to act independently of their elected officials.”

Aarseth ruled from the bench Friday, ordering the state to get the petition booklets issued to the recall proponents by Feb. 10. He followed that Tuesday with a point-by-point analysis of the case, which is headed to the Supreme Court on appeal.

Aarseth said he would offer no opinion on whether the allegations against Dunleavy are true or whether the governor should be recalled.

He quoted an Alaska Supreme Court ruling in 1984 that said voters act as the trier of fact in recall elections and “make their decision in light of the charges and rebuttals.”

Here are the specific charges in the recall petition that Dunleavy shows a lack of fitness for the job, incompetence and that he neglected his duty, along with Aarseth’s summary of the legal standard.

Allegation: Gov. Dunleavy violated Alaska law by refusing to appoint a judge to the Palmer Superior Court within 45 days of receiving nominations.

“Gov. Dunleavy had a legal duty to select a candidate within the time prescribed by the Legislature. If the allegations are true, his failure to select a candidate by the prescribed date could demonstrate to a voter that: he ‘lacks fitness’ because he did not obey the law; that he is ‘incompetent’ because he did not understand his duty to conduct his due diligence on the candidates or process before the expiration of the statutory deadlines; and/or that he ‘neglected his duty’ because he failed to appoint a new judge within the time given by statute. This allegation is legally sufficient.”

Allegation: Gov. Dunleavy violated Alaska law and the Constitution, and misused state funds by unlawfully and without proper disclosure, authorizing and allowing the use of state funds for partisan purposes to purchase electronic advertisements and direct mailers making partisan statements about political opponents and supporters.”

“If the allegations are true, Gov. Dunleavy’s conduct could constitute a violation of the law, which could constitute a neglect of duty. If he understood the laws, and chose to ignore the laws, the action would establish a lack of fitness. On the other hand, if he did not intend to violate the law or did not understand the law, the allegations, if true, could establish his incompetence. The facts and conclusions, therefore, are left to the voters to decide. This allegation is legally sufficient.”

Allegation: Gov. Dunleavy violated separation-of-powers by improperly using the line-item veto to attack the judiciary and the rule of law.

The recall petition alleges that Dunleavy explained his veto of $334,700 to the court system as reflecting his opposition to state-funded elective abortions. “Plaintiff alleges that the veto message demonstrates an attempt by Gov. Dunleavy to influence and undermine the judicial branch’s independence. If the allegations are true, Gov. Dunleavy breached his oath of office to defend the Constitution by attempting to infringe upon the powers reserved to the judicial branch, thus constituting a neglect of duties. If true that Gov. Dunleavy attempted to influence or undermine the independence of the judiciary, his actions could constitute a lack of fitness. Last, if Gov. Dunleavy was unaware of his duty to not encroach upon the powers of another branch, that could constitute ‘incompetence.’ This allegation is legally sufficient.”

Allegation: Gov. Dunleavy violated separation-of-powers by improperly using the line-item veto to preclude the Legislature from upholding its constitutional health, education and welfare responsibilities.

This allegation is the only one in the petition that Aarseth found insufficient. He said the Legislature always has the power to try to override any veto.

“This allegation, even if true, cannot establish grounds for a recall based on lack of fitness, incompetence or neglect of duty.”

Allegation: Gov. Dunleavy acted incompetently when he mistakenly vetoed approximately $18 million more than he told the Legislature in official communications he intended to strike. Uncorrected, the error would cause the state to lose over $40 million in federal Medicaid funds.”

“A mistake can be a measure of competence. Gov. Dunleavy’s alleged mistake, if true, could be interpreted as ‘incompetence.’ Voters have the right to weigh the seriousness and circumstances of the alleged mistake."

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