Dunleavy’s refusal to appoint a judge proves to be the key issue in recall case

The Alaska Supreme Court hears oral arguments in the Recall Dunleavy case while social distancing on March 25, 2020.

It can be a fool’s errand to predict the outcome of a Alaska Supreme Court challenge by the questions the justices ask, but the following exchange from Wednesday’s oral arguments over the legality of the effort to remove Gov. Mike Dunleavy from office is about as telling as anything.

A little set up: One of the claims against Dunleavy is that he broke the law by refusing to appoint a judge within by the 45-day deadline set in state law. There’s no doubt that he didn’t follow the law,  which required the intervention of Chief Justice Joel Bolger (who’s recused himself from the case), but the state—Dunleavy’s last standing defender—argues essentially that it wasn’t that big of a deal.

The state’s position has centered on a novel reading of Alaska recall law, arguing that the Recall Dunleavy campaign not only needed to prove in its 200-word recall statement that the governor broke the law but that in doing so caused harm.

“The governor refused to appoint a judge within a specific timeline,” said attorney Margaret Paton-Walsh as a justice interjected “As required by law.”

“The allegation,” she continued, “isn’t an allegation he didn’t appoint a judge or that he didn’t appoint a judge from the list of nominations that he was given or that there was a vacancy or that there was an any impact. What we have is the governor refused to meet a statutory deadline. Why is that a reason to remove him from office?”

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

“If the governor can be subject to recall every time anybody thinks that he’s violated a law,” said Paton-Walsh before she was interrupted again.

“But that’s not what we’re talking about really what we’re talking about is the statutory requirement to appoint a judge in 45 days,” Stowers said. “Which has been subject to some investigation and controversy going back to Gov. Hickel, he ultimately did make his appointment within 45 days, and also Gov. Murkowski, who ultimately did barely make the 45 days. This is not something new to governors. Governors with some frequency chafe at the judicial selection process but the statute requires appointment within 45 days.”

She went on to argue that the Supreme Court would be setting a dangerous precedent to allow a recall to move forward any time the governor didn’t follow state law.

“Are we going to have a system where an official can be recalled because they refused to issue a proclamation commemorating a particular holiday?” asked Paton-Walsh. “That can’t be what this process is for and if it’s not, this allegation needs to be more than just say here’s a law, the governor broke it.”

“I’m hoping you can see the difference between that kind of a proclamation and something that is an actual statutory duty,” replied Justice Peter Maassen, before moving onto other aspects of the case.

The issue of severity is certainly on the mind of the Supreme Court justices as they consider whether to allow the Recall Dunleavy campaign to move forward (The Supreme Court has already allowed the campaign to begin gathering its second round of signatures, a signal that the group is likely to prevail).

In questioning with Recall Dunleavy attorney Jahna Lindemuth, justices asked whether there should be a test to determine whether a violation of a law was enough to merit a recall of an elected official or if any violation would be viable.

Lindemuth said it should be left up to voters to decide whether or not the violation of a law is severe enough to be removed from office, but noted that if there is a test for severity, then it wouldn’t apply to this case because the refusal to follow the timeline to appoint a judge is serious.

“This is not a case where the governor simply mistook deadlines due to inadvertence,” she said. “The refusal to appoint is far from inconsequential. It risks serious damage to another branch of government, the judiciary, if qualified applicants very well may not apply if the governor is politicizing the appointment process.”

Lindemuth argued that the state’s position that harm must be shown for claims to move forward is not supported in any way by state law, noting that the argument didn’t even appear in the initial rejection of the recall application.

She said the decision on whether any of the claims are severe enough to justify removal from office should be left to the voters, and she said the voters have already spoken when nearly 50,000 Alaskans signed the recall application.

“This is already a difficult process and this administration seeks to make it an impossible task by adding artificial technical hurdles that this court warns should not be imposed by the judiciary,” she said. “If this administration wants to change how recall is conducted in Alaska to make it more protective officials, it can seek a legislative change.”

The Recall Dunleavy campaign brought several claims against Dunleavy in its application and all claims but one were accepted by Superior Court Judge Eric Aarseth in proceedings earlier this year. The claims include the failure to meet the 45-day deadline, Dunleavy’s use of state resources for advertising attacking his political opponents, his politically motivated vetoes of the court system and a mistaken veto of Medicaid funds.

If the Supreme Court was skeptical of any of the claims, it might be on the court vetoes.

Justice Daniel Winfree agreed that the 45-day deadline was crystal clear but noted that the violation of separation of powers, as alleged by the Recall Dunleavy campaign, was more nebulous.

After hearing oral arguments, the court took the lawsuit under advisement and will be issuing a written order at a later time.

It’s not entirely clear what will happen if the court strikes one of the claims from the recall petition, which is currently collecting its second round of signatures needed to call a special election with the claims approved by Judge Aarseth. The state has warned that it could put those signatures into a legal gray area.

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