The recall election in Homer, Alaska may proceed, according to an Anchorage Superior Court judge.
The lawsuit by three Homer City Council members, who sought to avoid facing voters in a special recall election, came before the court on Monday.
By Tuesday, Judge Erin Marston had filed his ruling: The three city council members who claimed that a recall election would violate their “free speech rights” were sent back to Homer to face the music with the voters.
Not to go all constitutional on you, but the voter-centric language in this ruling is worth a good look.
“The statute provides the electorate with the ability to recall elected officials for cause, but requiring ‘misconduct in office’ to be criminal conduct overly limits the statute and would deny the voters’ right to effectively seek recall of their elected officials. It would also not be a ‘liberal construction’ of the statute,” Marston wrote. He meant liberal with a small “l”.
“Plaintiffs also argue [that] the petitions reference ‘unfitness’ and unfitness is not grounds to recall a municipal official. However, this interpretation ignores the language of the recall as a whole as well as the intent of the petitions. ‘Unfit’ versus ‘committed misconduct in office’ is not decisive here. Misconduct is referenced in the recall petitions. To reject the petitions for this small distinction would be to ignore the Supreme Court’s direction to liberally construe the statute and not to create ‘artificial pleading barriers.’
“Plaintiffs claim the certification of these recall petitions is an impermissible restriction on their Constitutional guarantees of freedom of expression. Defendant and Intervenor argue that certification of the petitions does not constitute state action for First Amendment purposes. Alternatively, they argue that these protections do not protect Plaintiffs from the regular functioning political process,” the judge continued.
Judge Marston was not buying it. “Here the City of Homer Clerk is administratively doing what she was legally required to do by the recall statutes,” he wrote.
“These are not recall petitions drafted by the City of Homer; they were prepared and filed by private citizens exercising their rights under AS 29.26.250. First Amendment protections against abridgement of speech by the federal or state government do not apply to actions by private citizens. The City of Homer did nothing to suppress speech.
“It is not what the Alaska Constitution and statutes contemplated and it is an unreasonable interpretation of the law”. – Judge Erin Marston
“To conclude that anytime a recall petition is based in part or in whole on what a politician said is protected by the First Amendment would be to eviscerate the recall statute to such an extent that the populace would almost never be able to seek recall of any of their elected officials. It is not what the Alaska Constitution and statutes contemplated and it is an unreasonable interpretation of the law. The recall statutes contemplate a political process initiated by the voters. Elected officials cannot exempt themselves from the process by claiming First Amendment protections.”
The American Civil Liberties Union attorney, Eric Glass, represented the three council members.
“It’s important to remember that, in Alaska, elected officials cannot be subjected to recall simply for a political disagreement but instead can only be subjected for recall for cause,” he argued during Monday’s trial. He did not, evidently, convince the judge that the ACLU should be the determiner of what “cause” is.
That right there was the crux of the matter. Do voters determine misconduct and unfitness for office, or do ACLU and their attorneys make those distinctions?
The recall effort started after the three worked privately to craft an official city resolution that was “anti-Trump Administration” in nature, and was attempting to have Homer designated a “sanctuary city” that would shelter illegal immigrants. A later draft of that resolution was voted down by the council, even though it had been watered down to be an affirmation of Homer as a welcoming city to all.
The recall alleges the three council members are unfit for office. It also alleges misconduct, claiming damage was done when the draft of the resolution about “inclusivity” was made public.