Justices explain their 'Recall Dunleavy' decision; Justice Stowers issues a powerful dissent - Must Read Alaska
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Wednesday, October 20, 2021
HomePoliticsJustices explain their ‘Recall Dunleavy’ decision; Justice Stowers issues a powerful dissent

Justices explain their ‘Recall Dunleavy’ decision; Justice Stowers issues a powerful dissent

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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.

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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

  • “Standardless Recall Petition ”

    Didn’t we just witness this on the federal level??

    Russia Russia Russia

  • As Bluto (John Belushi) said in the movie apparently inspiring the behavoir of the actors in our State government, “Food Fight!”

  • I totally agree with Justice Stowers. These recalls are getting out of hand.

    I find it hard to believe that a majority of the Court would disagree. But the recommendation to change the statute would definitely be an improvement.

    The old saying: “the government you elect is the government you deserve” seems to also apply here. You want a governor who hypes the Dividend at the cost of everything else? You got it.
    You want a Legislature tied up in knots for years over the Dividend? You got it.

  • So, does this open up the flood gates for recalls on Merrick, Rasmussen, Stutes, LeBon, Thompson? Apparently the Constitutional guidelines for a recall are not void?

    • It should, let em rip fellas

  • The dissent is meaningless and has absolutely no purpose when it comes down to determining whether a future recall can go forward. It has no binding authority and constitutes no more than one Justice venting over a majority decision he did not agree with. It will in no way deter future recall efforts. However the majority decision will indeed encourage more.

  • Chief Justice Stowers is correct. This kind of imperial power grab is why we must change the way Judges are selected – drop the Judicial Council as the sole nominator of Judges. As for the recall committee, they need to take a chill – and send Scott Kendall to Venezuela. The whole recall effort is a disrespectful fraud.

  • Unfortunately Stowers is a “former”

  • This state is so broken.

    • Since politics is downstream of culture, the people are broken as well. No respect, no decorum, no faith.

  • It is apparent that this recall effort will get the blessing of the establishment and is designed to set the stage for the return of former Governor Bill Walker. That was the apparent design from the beginning, as it was apparent that his people set up the recall, on 90 days after Governor Dunleavy took office. The legislature was then free to ignore anything that Governor Mike Dunleavy put forth. The PFD should be settled so the legislature can work on more substantive issues. The Hill lambasted the legislature as the most dysfunctional in the US. Not what Alaskans need or deserve.

    And there are other problems,waiting in the wings. The Pacific Coast is a time bomb waiting to go off, in the guise of two huge faults that can and most probably will produce earthquakes in the 8 and 9 Richter range, because they are so long overdue. One, the San Andreas, runs almost the length of California, and is a slip/slide fault. It would have disastrous consequences on the ports of San Diego, San Pedro, and San Francisco. The other one is the Cascadia fault, which runs from Northern California into Canada. This fault is a subduction fault that can easily hit 9 on the Richter scale. That would destroy the locks in both the Tacoma and Seattle ports and render them useless for quite awhile. You can also forget about Portland, Oregon as well. With both of the faults over 100 years overdue, and both have large sections locked, it is not if, but when they will move.

    Alaskans receive most of their goods from these ports, and will be in a real mess when this happens. Most governors and legislatures apparently have been content to ignore this threat to the very lives of Alaskans. Governor Dunleavy did address this briefly in his third state of the state address, but nothing can really be done until the PFD is is moved off the table for good.

    Unless Alaskans wake up and goad their legislature into action, this student of Alaskan politics fears the worst for the citizens who are not being told of the dangers they are facing. Instead, the Great Land’s citizens are having to put up with the most abysmal group of legislators and now the courts, too, so that nothing will get done. If the political establishment in Alaska is allowed to prevail, no one will be able to undo the resulting damage to the political system that they are in the process of making. Time for a change and some advance planning before it is too late.

  • Alaska’s court system is riddled with leftist judges who want to legislate from the bench! Since our incompetent leftist controlled legislature probably will not try and fix this, we are in trouble since the will of the people in conjunction with the Constitutional principles in place to protect our rights are being trampled.

  • Way past time to either get the lawyers off the Alaska Judicial Council or completely abolish it! Classic fox guarding the henhouse scenario!

  • Yes, leave it to the court that decided legislators don’t have to follow Alaska Statutes …..

  • This will just help Dunleavy fundraise and build up his war chest. They don’t have the time and money to mount both a recall, and a serious challenger campaign for when the recall fails, and it will, so they’ll do both poorly and with limited resources being pulled in both directions, essentially fighting themselves. The Gov is currently polling as the most liked and with the highest approval of any politician in the state. Good luck Walkerites and Lefties, you have the courts, the feds, and big business on your side and you’ll still end up looking hapless as ever. You’ve betrayed the people one too many times and they have FINALLY woken up. This is Dunleavy’s to lose. It won’t be a recall that takes him down, and there are no serious challengers on the left (or the fake far right, sorry Reinbold). Barring a massive misstep on the part of the Governor this will be the first Gov to get a second term in a long time, and when he does look for the kid gloves to come off. All indications are there will be another bloodbath in the legislature and Big Mike will have the closest thing to an actual conservative majority in both houses, and nothing but legacy to worry about, and anyone who has followed him knows he wants his legacy to be one of reform, and of empowering Alaskans, and not the big businesses or generationally wealthy families of Alaska (looking at you Von Imhoff) who look at the state as their entitled lands and the rest of us as the serfs that work it. A true reckoning is coming.

  • Alaska’s “judiciary” doesn’t have to insult what’s left of folks’ intelligence by explaining or dissenting from anything and they bloody well know it.
    .
    The Alaska Bar Association is constitutionally empowered literally to own and operate Alaska’s judiciary
    .
    … which means they can do what they want; who’ll tell ‘em they can’t?
    .
    Governor D. incurred the judiciary’s wrath by taking state infanticide money out of the judiciary’s budget.
    .
    Not surprisingly the judiciary’s owner-operators hit back by helping assure Governor D’s recall through the miracles of ranked-choice voting, selective voter disenfranchisement, and Dominion vote-tabulating equipment.
    .
    This is what happens, and what will continue to happen, when one-third of Alaska’s state government is controlled exclusively by the Alaska Bar Asoociation.
    .
    The next constitutional convention could bring about the end of this damned dynasty.
    .
    We can make this happen… hell, we gotta make this happen!

  • So many thoughtful comments by patriots willing to put their names to their convictions and not hide behind anonymous monikers. Well done folks.

  • I am confident that if it was Walker who was being recalled, Justice Stowers comments would have been harshly criticized by the real republicans.

  • Well, the commentators here, for the most part, have got this figured out, I suppose. Pretty much everyone agrees the Alaska Supreme Court got this wrong, wrong, wrong.

    But did they? Did all of you who seem so self-assured in your opinions actually read the opinion?

    Having read the opinion a couple of times now, I believe Justice Stowers makes a number of good points and is more right than wrong on the issue he addresses. The Governor, in this case Governor Dunleavy has the ability to veto appropriations and even reduce appropriations. That is a right grounded in the Alaska Constitution and one that Governor Dunleavy elected to use.

    But do recall that the issue about the use by Governor Dunleavy was but one of four issues addressed in the appeal. Even if the court got it wrong in regard to the issue related to appropriation reduction, the other three grounds that were litigated in the appeal provide sufficient reason to move forward with the recall.

    Dunleavy is not going to get recalled. This entire issue is really an abstract fight about whether the citizens can recall the officials they elect to represent them. the pandemic and the degree to which recalls are hard to pull off have worked in Mike Dunleavy’s favor so save all the outrage against the Supreme Court for doing their job. Even if you agree with Justice Stowers and the reasoning in his decent, which I mostly do, the other three ground by which the petitioners sought to recall Governor Dunleavy were unanimously upheld.

    This isn’t some liberal plot to take out a hard-working politician doing the job they were elected to try and complete. Mike Dunleavy used public funds for partisan purposes according to the recall petition. The court determined that was an adequate reason to try and recall the governor. The court decided Governor Dunleavy’s failure to appoint a judge according to the time line set out in law was sufficient to try and recall the governor. And, the court found that recall petition ground that Governor Dunleavy bungled a veto of funds that caused a loss of $40M in federal matching money was adequate to try and recall the governor. These three reasons were approved as sufficient reason to try and recall the governor.

    In the end, the public gets to vote on the recall, assuming the petitioners get the proper number of signatures, which they are unlikely to do.

    All the sound and fury about the appropriation reduction is mostly political hysteria and rests with then Governor Dunleavy’s Chief of Staff Tuckerman Babcock who convinced the Governor to reduce funding for the judiciary in an amount supposedly pegged to funds related to abortion services. By inserting language related to abortion into the appropriation reduction, Mike Dunleavy exposed himself to charges that he was overstepping the constitutional seperation of powers doctrine. In the end, the Alaska Supreme Court found that he did. This is what happens when Governor Dunleavy listens to feckless twerps like Babcock, a guy who thinks he is a genius because he read Ayn Rand in Junior High and made her doctrine his guiding light for decades. Babcock’s crabbed view of society, his endless score settling and incessant desire to impose his weird world view on Alaska is pathetic. Why Mike Dunleavy give the guy the time of day is anyone’s guess and reason enough to wonder about the Governor’s ability to shift through who should be advising him on matters of state.

    Oh well, we get what we deserve up here in this little experiment in democracy. Stowers was more right than wrong in his dessenting opinion but that doesn’t absolve Governor Dunleavy from some of the dim-bulb decisions he has made or insulate him from the rough and tumble world of politics, including the ability of the citizens to try and use their constitutional right to recall him or any other elected official.

    Man up or quit but stop whining about the judges. At least they do their job without making making $4B mistakes and then claiming it was a “scribners” error.

  • Justice Craig Stowers is one of the liberal justices that wants the subvert the peoples rights to remove corrupt politicians. He is the perfect example of the CORRUPT DOJ!!!!

    • Nav: try and navigate your way here based on reality.

      And, what is your reference to “DOJ?”

  • This is a failed government. But the bureaucracy it represents grows more tyrannical by the day. Morally, citizens have no duty to obey such a government because it has violated the so-called social contract. Yet so many people confuse the bureaucracy with the idea of “government” and they feel it’s wrong to disagree with the dictates coming down from our superiors due to decades of the law-and-order propaganda we’ve been feed.

    What we have instead of classical rule-by-consent is almost direct rule by bureaucracy. The legislature is a rubber stamp for bureaucrats and special interests and they collude with each other to ensure none of us are repesented at all. How do you unelect bureaucrats? For that matter, how do you unvote for the 2 or 3 candidates we are usually presented if you despise what they stand for and you have no representation of your own views on the ballot?

    There is no mechanism to peacefully remove institutional bureaucratic tyranny. That’s why nobody has done anything yet- a fact that is waved in our faces repeatedly in comments across the internet while the provocateurs laugh in our face to humiliate Alaskans, and Americans in general, with our own impotence in the face of an open rebellion against us by the bureaucracy and their politicians.

  • Few US citizens know that GESARA (US) has been launched as of July 17, even though the US government hid it and even set up false web sites after it was signed in 2000 by President Clinton. So, one of the provisions is that all judges and lawyers will be retrained in Constitutional law. I see a purge coming! No one associated with the bar is operating constitutionally.

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