Justice Craig Stowers, now retired from the Alaska Supreme Court, said the Superior Court’s decision to allow the Recall Dunleavy initiative to proceed to the ballot is violating the Alaska Constitution. Legislators need to fix the recall process, or there will be constant churn and chaos in government, he said, because any vile allegation of misconduct against an elected official is now presumed to be true by the courts.
“I urge every legislator to carefully consider the court’s opinion today. The opinion opens the door to standardless recall petitions. The court repeatedly says that Alaska courts are to apply the ‘prima facie’ standard to recall petition allegations and, accepting the allegations as true, if any logical connection can be made between an allegation and a statutory ground for recall, the petition must be found to be legally sufficient. I urge the legislature to, at the least, provide specific statutory definitions for the recall grounds to decrease the opportunity for judicial involvement in what is best done by the legislature — that is, legislating. This is not a partisan issue. The greatly expanded access to recall created by the court’s decision today can and will be used not to actually seek to recall an elected official for cause, but instead to seek to recall an elected official because of disagreements over policy. And in Alaska, disagreement over policy or political philosophy is not a proper subject for recall.”
The Alaska Supreme Court upheld the Superior Court’s ruling that the recall fit the parameters of Alaska Statutes. But Stowers pointed to the fact that the courts are now injecting themselves, and that is improper and a violation separation of powers and is an overreach by the court.
“In my view, the governor did not violate the separation of powers by using his constitutional discretion to line-item veto a small portion of the court’s budget. Rather, it is the court that violates the separation of powers, by intruding on and interfering with a power expressly granted to another branch of government — the governor’s express constitutional authority to exercise his discretion to veto or reduce a legislative appropriation,” he wrote.
“The doctrine of separation of powers prohibits one branch of government from ‘exercis[ing] any power that is not explicitly bestowed by the constitution or that is not essential to the exercise of that power.’ In doing so, it ‘avoid[s] . . . tyrannical aggrandizement of power by a single branch of government through the mechanism of diffusion of governmental powers.’ But it also ‘limits the authority of each branch to interfere in the powers that have been delegated to the other branches’ and, by doing so, ‘safeguard[s] the independence of each branch of government,'” he wrote.
“By permitting voters to recall the governor because he exercised a power explicitly bestowed on him by the constitution, the court interferes with the power delegated to the executive branch. In so doing the court unconstitutionally aggrandizes its own power and imperils the independence of another branch of government. The court’s decision undermines Alaska’s constitution and the separation of powers. I therefore dissent from this part of the court’s opinion,” he said.
Read the entire opinion at this link:
The application for a recall petition against Gov. Mike Dunleavy cited lack of fitness, incompetence, and neglect of duties as grounds for recall and made four different allegations of how those grounds were met. The director of the Division of Elections refused to certify the application, asserting that it was not legally or factually sufficient.
The Recall Dunleavy Committee challenged the director’s decision in Alaska Superior Court. That court granted summary judgment for the committee, deciding that except for one allegation, which it struck, the allegations in the committee’s application were legally and factually sufficient.
The committee was allowed to move on to the second phase of signature-gathering on its recall petition; if it was successful, the State would call a special election to allow the voters to decide whether the governor should be recalled.
The State appealed, and we affirmed the superior court’s decision in a summary order with an opinion to follow. We explain in this opinion why the committee’s recall application satisfied the legal requirements for presentation to the voters.
Gov. Mike Dunleavy issued a statement:
“The Alaska Supreme Court today issued an opinion that creates a standardless recall process, subjecting elected officials at every level, and across the political spectrum, to baseless, expensive, and distracting recall elections by their political opponents. The court has made it clear that even plainly false allegations of wrongdoing can trigger this process, undermining our election process, and prevents our elected officials from focusing on the many serious issues facing Alaskans,” he said.
“The Legislature can and should fix the law to create well-defined recall grounds, preserving the right of the people to recall elected officials for legitimate reasons, but preventing the political free-for-all created by today’s decision,” Dunleavy said.
“Unfortunately, the opinion today went far beyond what was needed to decide this particular case—it took the opportunity to attack the line-item veto power specifically granted to the Governor by the Alaska Constitution. As Justice Stowers said today in his dissent to this decision, “the court unconstitutionally aggrandizes its own power and imperils the independence of another branch of government. The court’s decision undermines Alaska’s constitution and the separation of powers.'” he said.
“I have long argued that the Alaska Supreme Court—and the people of this state—would benefit if the Alaska Judicial Council would nominate a slate of candidates with more balanced and diverse judicial philosophy. I am not the first governor of this state to think this. Today’s decision underscores this view,” Dunleavy said.