The future of Recall Dunleavy, the campaign to oust Gov. Mike Dunleavy after less than a year in office, is now up to the courts. As expected, state Attorney General Kevin Clarkson, who Dunleavy appointed, recommended that the state Division of Elections turn down the citizen initiative to put the recall question before voters.
Division of Elections director Gail Fenumiai did that Nov. 5. The next day, the initiative organizers filed suit in Anchorage Superior Court to overturn Fenumiai’s decision.
“There were sufficient qualifying signatures and the technical requirements of the recall statutes were met, but the Department of Law concluded the statement of grounds for recall was both factually and legally insufficient to meet the statutory grounds for recall,” Fenumiai said in a statement.
The Recall Dunleavy campaign was ready. “Attorney General Clarkson’s rejection was completely expected. After all, he was one of Governor Dunleavy’s chief advisors as he took the radical and unacceptable actions that gave rise to the recall,” said Meda DeWitt, Chair of Recall Dunleavy and the campaign spokesperson.
The grounds of the recall, that Dunleavy acted in unconstitutional ways and demonstrated incompetence, were expected to be attacked by defenders of the governor, and it is an unprecedented case, at least for a state official, and is new legal ground.
Scott Kendall, legal counsel to Recall Dunleavy, said Clarkson should have retained independent counsel to do the review, which would have ensured the work was done by a neutral party and and did not have the appearance of bias. Instead, Clarkson chose to do the review himself, Kendall said, which taints the legal analysis because Dunleavy had appointed the attorney general. “Today (Nov. 4) we move forward,” Kendall said. “We appeal this rejection on behalf of the 49,000 Alaskans who signed on to exercise their constitutional right to remove Governor Dunleavy from office,” Kendall said in a statement.
DeWitt said the number of signatures on petitions confirmed as valid by the Division of Elections, at 46,405, set a record for the division. Ninety five percent of the signatures gathered by volunteers for the recall were certified as Alaska residents qualified to vote. “To an entirely unprecedented degree, Alaskans are demonstrating broad, nonpartisan support for the recall, standing tall to engage directly in the political process to put our state back on track,” she said.
If the application is certified by the courts, the recall campaign will begin collecting 71,252 petition signatures to qualify for advancement to the ballot, or 25 percent of the total number of qualified voters who participated in the last general election. The 46,405 signatures on the initial petitions cannot be counted as a part of the 71,252 needed, but if the courts uphold the initiative the campaign organizers have established a electronic database that will allow those who signed initially to recertify their signatures in the larger effort.
In its application, the recall campaign cited four legal justifications required by the state Constitution. First, Dunleavy did not appoint a judge for the Palmer Superior Court within 45 days of receiving nominations, which the Constitution requires; second, that the governor used state funds to purchase electronic advertisements and direct-mail pieces making partisan statements about political opponents; third, that Dunleavy vetoed funds for the court system based on his disagreement with a judicial decision related to abortions and used his veto authority in other ways to cause state programs to be realigned. This amounted to law-making and was an unconstitutional infringement on the constitutional responsibility of the Legislature to create or change state laws, and fourth, that the governor mistakenly vetoed $18 million more from state Medicaid funding than the amount he had specified to the Legislature, an action that caused the state to lose $40 million in additional federal funds. This demonstrated incompetence, the recall organizers argued.
In arguing the legal points, Clarkson acknowledged that the state Supreme Court has not yet made decisions, and set standards, for a recall of a state official, but he said that court has said that guidelines for recalls of local public officials, which have been been set through decisions, would also apply to state-level officers. A key area of argument by Clarkson is that a “neglect of duty” cited in the recall, “means substantial noncompliance with one or more substantive duties of office,” Clarkson wrote in his opinion. In other words, the instances cited by the recall effort may not have been enough to meet the neglect of duty test.
Clarkson also wrote that discretionary uses of power and disagreements on policy matters are not themselves grounds for recall. He also argued that “lack of fitness” as grounds for recall must be based on substantial physical or mental inability to perform duties, although the attorney general also cited Alaska court decisions where fitness was defined more broadly.
The attorney general also argued the specific points justifying the recall, arguing the petitioners’ interpretation of the Palmer judge appointment facts and saying that the governor’s line-item veto authority granted by the Constitution have him broad discretion in using it, and one error cited in the Medicaid veto, “does not amount to a showing of lack of knowledge, skills or professional judgment,” Clarkson wrote.
“If this amounts to incompetence, then every governor and legislator should be recalled for any technical error made on an official document or letter,” Clarkson wrote.
In its appeal filed with the Superior Court the Recall Dunleavy campaign did not argue the specific points raised by Clarkson – this will be left to arguments in the proceedings by the court ¬– but asserted that the Director of Elections’ decision in the rejection amounted to a unconstitutional denial of citizens’ rights to initiate a recall of an elected official.
Legal experts say that because recall standards for a state official are largely undefined, despite Clarkson’s arguments, that the courts are likely to allow the petition process to move forward to allow voters to make the final decision. To this end, the fact that 46,405 signatures were validated by the Division of Elections, an indication of broad support, will likely be factor weighed by judges in making the final decision.