Alaska Supreme Court releases long-awaited order on Dunleavy recall and it’s a doozy

Supporters of the Recall Dunleavy campaign follow co-chair Vic Fischer on his way to submit more than 49,000 signatures to recall Gov. Mike Dunleavy to the Anchorage Division of Elections office on Sept. 5, 2019. (Photo by Matt Buxton/TMS)

More than a year after the Alaska Supreme Court gave the green light to the Recall Dunleavy campaign to begin collecting the necessary signatures to call a special election to remove Republican Gov. Mike Dunleavy from office, the court has finally released its final order on the case.

The 58-page ruling stands as the latest and most exhaustive review of Alaska’s recall laws, detailing the grounds by which future recall efforts are considered as well as the bounds of the Alaska governor’s veto power.

The ruling upholds all four grounds brought by the Recall Dunleavy campaign—the failure to appoint a judge by the 45-day limit, a state-sponsored political campaign, violating the separation of powers by issuing a politically motivated veto of the court system funding and a separate mistaken veto—with the only dissent coming from Justice Craig Stowers on the separation of powers issue.

One of the most significant outcomes of the ruling focuses in on whether or not the state and courts should act as gatekeepers for recalls, determining whether or not an act or violation of law rises to the level of a recall. While the State had argued against approving the recall, arguing that many of the issues were “a harmless act with no lasting impact,” the court opinion says it’s not up to the state or courts to decide.

“The state argues that ‘a harmless act with no lasting impact’—like the failure to appoint a judge within the time allowed by statute—should not be grounds for recall because if it is, the process is effectively ‘a no-cause political recall.’ More generally, the state argues that the Division (of Elections) and the reviewing courts should act as gatekeepers to determine which allegations are serious enough to be presented to voters,” the order explains. “But It is for the voters—not the Division (of Elections) or the courts—to judge the seriousness of an alleged ground. The people asked to sign petitions must decide whether the allegations are serious enough to warrant a recall election; each voter in the voting booth must decide whether the allegations are serious enough to warrant removal from office.”

And while the recall against Dunleavy and subsequent recall efforts targeting Anchorage Assemblymembers and legislators have ran into criticism about being more about policy differences than the actual grounds of the recall, the order says again it’s not up for the Division of Elections or the courts to decide.

“We are not naive to the reality that some voters will vote for or against recall motivated by policy differences or political loyalties totally divorced from the grounds alleged in the recall petition. This will be the case regardless of how the legislatures states the grounds for recall and how those grounds are defined,” explained the court, referencing the legal statutes that guide how recalls are determined. “But we cannot police the motivations of recall committees, petition signers, or voters; our task is to determine whether the recall application’s allegations are legally sufficient and are particular enough to give the targeted official fair notice of the claim.”

Why it matters: The overall impact of the ruling is, in effect, a permissive approach to recalls where the state and courts are there to judge only whether or not the claims meet the legal grounds for a recall. It leaves the decision on whether or not the claims warrant removal from office to the voters with a hands-off approach to whether or not the driving effort behind the recall is specifically about those claims or whether it’s about greater policy and political differences. We’ve essentially already seen this play out with the recall effort against Assemblymember Felix Rivera, who faced a recall over open meetings act violations.

Vetoes

The other significant takeaway from today’s ruling is its impact on the governor’s ability to issue vetoes. Two vetoes—the politically motivated veto of court funds and the mistaken veto of Medicaid funds—were included as grounds for recall and both were upheld in the court’s ruling. The mistaken veto of Medicaid funds where Dunleavy vetoed $40 million in Medicaid funds when he had publicly stated only $18 million would be vetoed was approved under the incompetence grounds, but it’s the veto of the court funds that spurred a lengthy review by the Alaska Supreme Court as well as the fierce dissent of Justice Stowers.

Among the 2019 vetoes, Gov. Dunleavy vetoed $334,700 from the Alaska Court System’s budget in retribution for the court striking down a law that banned state funding from going to certain abortions. The Recall Dunleavy campaign argued it was a violation of the separation of powers doctrine because it was the governor attempting to exert control over an independent branch of government, an argument that was backed up in a separate order issued by-then Superior Court Judge Jennifer Henderson (who was recently appointed to the Alaska Supreme Court). In arguments, the state acknowledged that cuts to the court budget could go so far as to undermine the operation of the court system and therefore violate separation of powers, but argued that the removal of the $334,700 from the budget didn’t meet that burden.

The Alaska Supreme Court sided with the Recall Dunleavy campaign, finding that intention in vetoes matters.

“The state, through the executive branch, appears before the courts as a litigant more than does any other single entity. An implication that the state can pressure a court to rule in its favor because of budgetary concerns sends a discouraging message to other litigants—especially those litigating against the state—who look to the courts for impartial justice and in most cases lack any countervailing influence,” the court explained. “In short, the separation of powers doctrine is intended in part to ensure that the judiciary is not pressured to decide cases with one eye on its budget. We conclude that the doctrine may be violated by a governor’s use of the veto power with the intent of pressuring the courts to rule in a particular way. … The veto power, though discretionary, may be exercised only within constitutional limits.”

In essence, the decision means there are limits to the governor’s power to issue vetoes and he cannot, in this case, use it to infringe upon the separation of powers doctrine that is intended to keep each branch of government independent from the influence of another.

In his dissent, Justice Stowers argued that there’s no actual constitutional basis for the separation of powers doctrine and that it is only implied. He also went on to argue that it’s impossible to deduct the governor’s ultimate intent with the veto.

“Of the greatest concern, the court’s opinion holds that the separation of powers ‘doctrine may be violated by a governor’s use of the veto power with the intent of pressuring the courts to rule in a particular way.’ And how is one to determine this malign intent? The court says that a recall petition’s mere allegation that the governor ‘improperly used the line-item veto to attack the judiciary and rule of law’ is legally sufficient,” he wrote in his dissent. “The court here makes an egregious error. Nowhere in its opinion does the court actually conclude that the governor’s line-item veto of such a small portion of the court system’s budget violates the separation of powers, nor does the court conclude the governor illegally used the line-item veto to attack the judiciary and the rule of law.”

Why it matters: This is a pretty significant ruling that will have impacts beyond just recalls. The constitutionality of the governor’s veto of the court system spawned its own lawsuit that resulted in it being found unconstitutional, forcing the state to restore the funds to the court system. While this order is limited specifically to the Recall Dunleavy effort, observers have noted that it could come into play with the governor’s recent veto of the Legislature’s per diem funding. Under this case, it would likely come down to intent: Did the governor veto the funds as a permissible cost-saving measure or did he deliver the veto as retribution on the Legislature not doing what he wanted?

The official statement attached to the veto is silent on intent, but at a news conference he said the following, which sounds more punitive.

“Every day a legislator is in session, they get close to $300 to pay for expenses. I certainly understand that those expenses have to be offset. But we’ve had two special sessions in which thousands of dollars was collected by members of hte Legislature and, at the same time, the Permanent Fund and the Permanent Fund dividend was not dealt with.”

Whether or not this amounts to anything would rely on whether or not the Alaska Legislature or another party mounts a legal effort against the vetoes.

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3 Comments on "Alaska Supreme Court releases long-awaited order on Dunleavy recall and it’s a doozy"

  1. What was the vote, 4:1? You didn’t specify.

  2. John E Reuter, Esq. (Ret.) | July 19, 2021 at 2:49 pm | Reply

    Martin. 6:0 (1 of them dissented IN PART) with the 7th not participating.

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