Supreme Court rejects state stalling on Dunleavy recall campaign

Last November, Attorney General Kevin Clarkson began legal proceedings to block the recall campaign against his boss for as long as possible.

Clarkson, who had an inescapable conflict of interest, invented an argument that became the foundation of the state’s losing case—he claimed the recall committee had not met the requirements set by law and court precedent and should not be allowed to collect signatures.

The delaying tactic worked, but for only six months. On Friday, the Alaska Supreme Court unanimously rejected Clarkson’s convoluted claims and said the recall organizers have a legitimate proposal and the state was wrong to stall. Justice Craig Stowers objected in part, saying that two of the grounds for recall should be rejected.

Gov. Mike Dunleavy and his support groups, led by Cynthia Henry and John Binkley, have falsely claimed that if the courts allow the recall to progress, any official could be recalled for any reason. This was also the Clarkson argument, now rejected by the Superior Court and the Supreme Court.

Clarkson alleges the justices ignored the history of the Alaska Constitution and state law. But Clarkson, who has a long losing streak as AG, is guilty of wishful thinking.

He is ignoring the history of cases like that of Billie J. Williams Jr., who faced a recall election more than 30 years ago as a member of the Copper River School Board.

One of the charges against Williams was that he had yelled “shut up” at a new board member, stifling debate.

“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.

In 1984, the Alaska Supreme Court wrote that the recall laws in Alaska were ambiguous and “the need for judicial participation in the recall process could be decreased by more carefully drawn statutes.”

But legislators and governors have long refused to improve the statutes and provide more specifics. As a result of vague laws, the courts have long given the benefit of the doubt to voters, not to elected officials.

No elected official in Alaska subject to a recall has ever admitted that it was legal.

In its ruling Friday, the Supreme Court upheld a January decision by Anchorage Superior Court Judge Eric Aarseth, that 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 were clear enough that the voters had the 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.”

The weakness of Clarkson’s legal reasoning was on clear display in the 25-page opinion he released Nov. 4.

There is no argument that Dunleavy violated the Alaska Constitution when he refused to appoint a Palmer judge from a list submitted by the Alaska Judicial Council. That’s the most solid of the four grounds for recall cited in the petition.

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.”

Even Clarkson admitted that Dunleavy violated the law. But he claimed it didn’t matter because it was only for a little while.

The Supreme Court has yet to release its full decision, but it was clear during oral arguments in March that Clarkson played a losing hand. A state attorney wondered aloud during that proceeding why would violating the law requiring that a judge be appointed by the governor within 45 days be a reason to remove Dunleavy?

“Perhaps because the governor is charged with applying the laws faithfully,” said Stowers.

It will 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. Clarkson’s obstruction should end with this decision.

The pandemic has slowed the recall, as the banning of mass gatherings has made gathering signatures far more difficult. The recall has gathered about 35,000 signatures, close to half the signatures needed to get the question on the ballot, and is proceeding by the mail-in route.

Supporters of the recall are trying to collect 40,000 more signatures. There is no deadline, but the question would appear on the general election ballot if the signatures are collected over the next two months. If it takes longer, a special election would be scheduled.

Dunleavy’s supporters are hoping that his handling of the COVID-19 pandemic will be enough to prevent signature gathering and keep him in office, but the political stall on state finances—which Dunleavy began at about the same time that Clarkson began the legal stall—has to end before long. All of the questions we face on state finances are difficult.

Dunleavy withdrew from decision making on state finances last fall after the recall effort began to threaten his political survival. Since he began political distancing, Dunleavy has been all talking points, all the time, while the state’s financial condition has grown far worse than anyone had believed possible.

The decisions that he makes on state finances in the months ahead will do more than anything else to decide the fate of the recall campaign.