AK Supreme Court wonders about one item on recall petition: Is it even true? - Must Read Alaska
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Saturday, June 6, 2020
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AK Supreme Court wonders about one item on recall petition: Is it even true?

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:

  1. 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;
  2. The constitutional limits, if any, that exist on a governor’s exercise of the authority to veto items in appropriation bills; and,
  3. 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).

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Suzanne Downing had careers in business and journalism before serving as the Director of Faith and Community-based Initiatives for Florida Gov. Jeb Bush and returning to Alaska to serve as speechwriter for Gov. Sean Parnell. Born on the Oregon coast, she moved to Alaska in 1969.

Latest comments

  • The Court appears baffled by the court….let’s just let the voters decide in the next election and get on with it….stop wasting everyone’s time !!!!

    • The waste of time is a frivolous attempt to undue a duly elected Governor all because your person dod not get elected. AKA The Hillary effect.

  • The sham continues. The odds of this recall being stopped here are low…one can hope the justices are considering the absolute joke this would be, and how the veil of corruption in the judiciary will be completely dropped but getting A reasonable and lawful verdict, still seems like the outside chance. However, getting the actual vote to take place during a normal election, preferably the Nov elections but even the August primaries- bodes much better for the people to have their will upheld. Low turnout special elections where special interests can drive their numbers while the general public is unaware, and thus, can’t be heard from, had always been the goal. That seems less and less likely as time goes on. This is a modicum of good news.

  • Alaska doesn’t have this doctrine as a rule of law. I looked. If we have it, citizens can’t find it very easily!

    • “Separation of powers doctrine requires that the blending of governmental powers will not be inferred in the absence of an express constitutional provision.” Bradner v. Hammond, 533 P.2d 1 (AK 1976)

      “Although the Alaska Constitution does not expressly address itself to the doctrine of separation of powers, the state Constitution is divided into a number of separate articles, and since this article concerns the executive branch, it can fairly be implied that this state does recognize the separation of powers doctrine.” Public Defender Agency v. Superior Court, 534 P.2d 947 (AK 1975); Rust v. State, 582 P.2d 134 (AK 1978)

      “Former AS 37.07. 080(9)(2) was unconstitutional for two reasons: First, because it delegated power over appropriations, a power which can only be exercised by the legislature in accord with the procedures mandated by Alaska Const. Art. II; Second, because the statute lacked standards to guide the exercise of administrative discretion. In either case, the statute violated the principle of separation of powers.” State v. Fairbanks N. Star Borough, 736 P.2d 1140 (AK 1987)

    • To add – Alaska conforms to the Federal separation of powers doctrine.

  • The uncomfortable (Draconian, Drastic, and unnecessary) budget cuts that the recall crowd is and was up in arms about comes to light in a new perspective with our double whammy Covid 19 and Oil non-revenue economic crunch. If Dunleavy gets recalled the next governor will possibly see these budget issues and raise them (further cuts). The cuts he wanted to make will be the middle bargaining chip….not by desire but of necessity. If he is not recalled either by vote or court ruling; I can envision a red pen so large it will hemorrhage. It is always exciting in Alaska!

    • The main issue to me has been the expansion of entitlements (the dividend), the unwillingness to implement a broad based tax, and the uninformed draconian cuts.
      .
      Yes there need to be cuts but all Alaskans need to pay for public services. Cuts should be informed not back of the envelope calculations promoted by people who know nothing about this state (is. Donna). The Permanent Fund was not enshrined in the State constitution to be a perpetual entitlement at a time our State is running off the fiscal cliff. And no it wasn’t enshrined in the constitution to offset a lack of property rights…
      .
      Unless Conservatives in this state recognize the dividend is an entitlement luxury, that it’s ok to pay our own way through broad based taxes, and that spending cuts need to be thoughtful and impartial we won’t fix this fiscal mess. Worse yet the next Governor will go in the opposite direction, increasing entitlements and spending.

      • Sorry, but the alleged draconian cuts were less than 5% of the budget. The liberals, unions, and media, same same, blew everything out proportion. As far as the PFD is concerned, you need to read up on it before lecturing. The pay out is calculated on earnings averaged over 5 years. If there is no earning, then there is no pay out. The pigs at the trough, liberal representatives, need and want more money to spend, so they devise a way to steal from the fund. Dunleavy needs to break out his pen and veto everything not related to the vivid-19 money and tell these idiots to get back in session.

        • How about the libs and unions recognize the gig is up and the bank is broke. We conservatives want the budget by whatever it takes to balance the budget and then tell me what you need more money for. The last 5 or more administrations have bleed this state dry with the spend it all mentality. By the way the PFD belongs to the people not the unions and politicians.

  • Deep in their souls, collectively, the justices know that the recall is bogus, politically inspired by sore losers from the Walker Administration, and, an inappropriate action during a national health emergency.

    • Well said!

  • The burden of proof lies with the accuser.
    The court is requesting that they come up with the law, statute, precedent that supports each of their claims, and wants them to explain it and how it applies to their recall petition. We all know that they have nothing. but hurt feelings.

  • I need some of these BS petitions and written arguments from the illegal recall group for my garden!

  • I wonder if the response will be generated from Palm Springs, where much of this has been generated from!!

  • Who What and Where is the funding of the recall movement?

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