Anchorage judge rules that Dunleavy recall should be allowed to proceed

UPDATE: Anchorage Judge Eric Aarseth ruled Friday that state legal precedent means the recall effort against Gov. Mike Dunleavy should move forward, despite objections by the governor and his attorney general. A Supreme Court appeal is likely by the Dunleavy administration.

No public official subject to a recall campaign in Alaska ever admits that he or she deserves to be recalled.

Lt. Gov. Jack Coghill certainly didn’t in 1993 when Fairbanks Superior Court Judge Richard Savell said that Coghill’s public admission that he had never read the election laws constituted grounds to allow a recall petition to advance.

Savell did not say that Coghill was incompetent because he hadn’t read the laws. He said the specific allegation was solid enough that the voters should have had the right to determine if Coghill was incompetent.

“It is not the court’s role to assess the truth or falsity of the charges in the petition,” Savell wrote on Sept. 14, 1993. “This is the domain of Alaska’s voters. They, by their votes, become the trier of fact and determine whether the charge can be sustained.”

The Coghill case never made it to the ballot, but the lieutenant governor’s study habits had nothing to do with that.

Five years earlier, Billie J. Williams Jr. didn’t think he should be tossed off the Copper River School Board because of a fight with teachers and others in Glennallen. One of the charges against him was that he had yelled “shut up” at a new board member, stifling debate.

Williams said it was baloney.

“The gentleman wanted to argue,” Williams told a reporter later. “I told him to shut up and that he would be given an opportunity to speak like everybody else.”

The attorney general’s office agreed that shouting “shut up” justified an election, as did an Anchorage court. Williams silenced his critics by winning the recall election in late 1988.

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.”

That plea for help has gone unheard for decades.

The Legislature and the executive branch have refused to focus time and energy on the recall statutes because this is a subject that can cause political indigestion.

The failure to write a clear Alaska recall law requires the continued “need for judicial participation,” as the Supreme Court said in that 1984 ruling. The courts have tended to recognize that the voters should be the ultimate authority if there is an argument with some substance.

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 keeping with political tradition, Gov. Mike Dunleavy says there is zero justification for allowing a recall petition to proceed to the next stage. Lawyers are to argue the matter in an Anchorage court Friday.

It’s possible that a ruling could take place Friday or it may be delayed.

Attorney General Kevin Clarkson, sporting an undeniable conflict of interest, pretended to be neutral last fall before concluding—as everyone expected—that the recall is baseless. That’s why this is in court.

He should have recused himself from the entire matter, as Attorney General Charlie Cole did nearly three decades ago when asked for an opinion on recalling his boss, Gov. Wally Hickel.

Cole, no relation, said whatever he would decide about the merits of the Hickel recall, Alaskans would not seem him as an impartial arbiter. Clarkson is no impartial arbiter.

I predicted here in November that the court system will reject Clarkson’s claims, given the legal history of Alaska recall battles, and allow it to proceed to the next stage. But if that happens in the Superior Court, Clarkson will appeal to the Supreme Court.

The Conflicted Clarkson wants to drag this out for as long as possible.

I think the strongest element in the recall petition deals with a clear constitutional violation, which is why I expect the courts will allow the voters to decide this matter.

The recall petition says Dunleavy “violated Alaska law by refusing to appoint a judge to the Palmer Superior Court within 45 days of receiving nominations.”

The Constitution says this about naming judges: “The governor shall fill any vacancy in an office of supreme court justice or superior court judge by appointing one of two or more persons nominated by the judicial council.”

Dunleavy wrote the Alaska Judicial Council March 20 to say that he would not pick a judge from the list, as required by the Alaska Constitution. He said, “I will not be selecting a second candidate from this truncated list.”

That Dunleavy later succumbed to political pressure and appointed a judge does not erase the violation.

That is a serious enough matter that the constitutional process should be allowed to proceed if for no other reason than to allow voters to make the final call on Dunleavy, not the attorney general and not the court system.

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