NO DECISION UNTIL AFTER APRIL 20
The Alaska Supreme Court today asked for further information in the matter of whether or not the recall of the governor meets legal criteria.
The court will now not rule on the question of the recall until after April 20 as it awaits further written arguments from each side – the group wanting to recall the governor, and the Division of Elections, which says the recall grounds are insufficient.
The question in the court’s deliberation is the third ground for recall in the petition by Recall Dunleavy Committee, which now has gathered 30,000 signatures, after the Supreme Court allowed the group to proceed with signature gathering:
That third ground is apparently in question: “Governor Dunleavy violated separation-of-powers by improperly using the line- item veto to attack the judiciary and the rule of law.”
The court asked the Department of Law’s attorney and the attorneys for the Recall Dunleavy Committee to submit supplemental briefs addressing the following issues:
- The historical basis of state constitutional provisions, and particularly the Alaska Constitution, Article II, section 15, regarding a governor’s discretionary authority to veto items in appropriation bills and the related requirement that the governor provide a statement of objections to the vetoed items;
- The constitutional limits, if any, that exist on a governor’s exercise of the authority to veto items in appropriation bills; and,
- In light of the foregoing, the legal framework this court should use for determining whether the third ground for recall is “legally sufficient” as required by our case law. How should the governor’s statement of his objections inform the analysis? Can the statement of objections itself demonstrate an “improper” use of the governor’s veto authority sufficient to support recall? Is an “improper” use of the governor’s veto authority a violation of the separation of powers doctrine? As used in the recall petition, is “separation of powers” a law — which the governor either violated or did not violate — or is it shorthand for something else? How should voters interpret the phrases “separation of powers” and “the rule of law”?
The court has asked for briefs of no more than 20 pages filed no later than April 13, 2020. Simultaneous responses of no more than 10 pages shall be filed no later than April 20, 2020.
It appears the court understands that constitutionally the governor has the power of veto, and is supposed to provide an explanation with his veto. It’s possible the justices are preparing to cut one or more of the four grounds that were submitted by former Attorney General Jahna Lindemuth, who is a political operative from the former Gov. Bill Walker Administration, and Scott Kendall, who was Walker’s chief of staff.
The wording of the recall petition and ballot language that the justices are considering is as follows:
Statement of Grounds: Neglect of Duties,Incompetence, and/or Lack of Fitness, for the following actions:
- Governor Dunleavy violated Alaska law by refusing to appoint a judge to the Palmer Superior Court within 45 days of receiving nominations.
- Governor Dunleavy violated Alaska Law and the Constitution, and misused state funds by unlawfully and without proper disclosure, authorizing and allowing the use of state funds for partisan purposes to purchase electronic advertisements and direct mailers making partisan statements about political opponents and supporters.
- Governor Dunleavy violated separation-of-powers by improperly using the line-item veto to: (a) attack the judiciary and the rule of law.
- Governor Dunleavy acted incompetently when he mistakenly vetoed approximately $18 million more than he told the legislature in official communications he intended to strike. Uncorrected, the error would cause the state to lose over $40 million in additional federal Medicaid funds.
References: AS 22.10.100; Art. IX, sec. 6 of Alaska Constitution; AS 39.52; AS 15.13, including .050, .090, .135, and .145; Legislative Council (31-LS1006); ch.1-2, FSSLA19; OMB Change Record Detail (Appellate Courts, University, AHFC, Medicaid Services).