MUNI ATTORNEY EXPLAINS: NEW COURT HAS NEW FOCUS ON RIGHTS

By SCOTT LEVESQUE

Anchorage’s acting mayor retained her authority on Tuesday to keep the city’s economy locked down for the rest of the month.

Emergency Order 16 is on the books until at least Dec. 31 after an effort by Assembly members Jamie Allard and Crystal Kennedy failed to wedge open the strict business and personal freedom sanctions from the Administration.

Assembly members directed questions at the Austin Quinn-Davidson Administration about EO 16 and its effectiveness. After all, Assembly member Kennedy pointed out, Quinn-Davidson appears to have followed all of her own mandates and protocols, but she still came down with COVID-19.

When asked by Assembly Member Kameron Perez-Verdia whether the virus can be even controlled, Heather Harris, the director of the Anchorage Health Department, said it can, in fact, be controlled.

“Yes,” she said. “There’s ample research that shows that some of our primary mitigating factors is around wearing a mask, maintaining a distance, and washing your hands.”

“And so, as we evaluated options in these emergency orders it was really important to come back to that, and these measures are all informed by that baseline context around being able to maintain mask usage, keeping our distance, and washing our hands,” Harris said.

Harris’s explanation aligns with the CDC’s recommendations for reducing transmission in densely populated areas: Hand washing, masks, and social distancing are the main preventatives to lowering transmission.

If hand washing, masks, and distancing are the most critical factors in controlling the virus, why is Anchorage locking down its businesses? Assembly member Allard probed that riddle in a number of her questions of the Administration.

Allard, an opponent of the lockdowns, also asked the Administration why churches are allowed to be open (which Allard supports) while many congregations are clearly not following the restrictions outlined in Emergency Order 16. She was pointing out the regulatory dissonance in the order.

Harris summarized the emergency order’s recommendations for churches. Municipal Attorney Kate Vogel interjected during Harris’ response to expound on why the municipality is easing off of churches — it’s because of the U.S. Supreme Court’s shift back to the constitution, she said.

“With the new makeup of the United States Supreme Court, they did change course a little bit from where they’d been in the spring when they had Ruth Bader Ginsburg on the bench,” Vogel said.

“There is a new makeup of the court, and they elevated, as I said, the importance, the constitutional importance, of being able to gather for the purpose of worship.”

Assembly member Kennedy followed up with a comment that controlling the virus is not apparently working, arguing that closing down businesses within the Municipality only drives Anchorage residents to spend their money elsewhere — including the Valley — further damaging Anchorage’s own economy.

Attorney Vogel responded, saying it is Gov. Mike Dunleavy’s fault that people in Anchorage are going to the valley to shop and dine:

“I think, from a legal standpoint, I can only say we have a certain jurisdiction, and we can do what we can to stop spread within our jurisdiction. The governor could be taking stronger action. It [mask mandate] would be statewide, and it would alleviate some of these concerns about people going to the lowest common denominator in terms of finding the place with the least restriction and doing their shopping there.”

With that, the Municipal Attorney of Anchorage had just called the Matanuska-Susitna Borough the lowest common denominator because it doesn’t have a mask mandate or business closures.

Among other edicts, EO16 mandates that everyone in Anchorage limit their outings and physical contact with those outside their households. Gatherings are limited and people are to wear masks when in public.

Most damaging to livelihoods is that restaurant and bars are closed except for curbside pickup and delivery, and all businesses are ruled by EO 16’s reduced occupancy mandates.

The entire Emergency Order is at this link:

Assembly member Meg Zaletel, who is the subject of a recall attempt, said she could not support the amendment to remove a number of restrictions, because it “doesn’t feel strategic in nature.”

Mat-Su Valley Reps. George Rauscher and Colleen Sullivan-Leonard today requested Gov. Mike Dunleavy and Acting Attorney General Clyde Sniffen, Jr. to join in a lawsuit with Texas against the states of Georgia, Pennsylvania, Michigan, and Wisconsin, due to violations of their own election laws that led to a win for Joe Biden.

That makes five Alaska lawmakers altogether who have put in a request to Gov. Dunleavy to join the lawsuit.

“There are major concerns by the people in the great State of Alaska regarding the recent elections. Irregularities in the election process in other states have … stripped all U.S. citizens of their constitutional, and legal, right to fair and just election for the presidency of the United States of America,” the two wrote.

“As pursuant to our oath of office to defend the Constitution of the United States of America and that of State of Alaska we, the undersigned, ask that you do the same, and support Texas in suing the States of Georgia, Michigan, Wisconsin and the Commonwealth of Pennsylvania for unconstitutional irregulates in the recent election process.

“Amongst other items, the suit asks the Supreme Court of the United States of America to extend the December 14, 2020 deadline for certification of presidential electors so that investigations into the irregularities can be completed by asking the court to ‘enjoin the use of unlawful election results without review and ratification by the defendant states’ legislatures.”’ 

The election statues were disregarded by courtrooms not only before, but also while the election was already in progress, which resulted in opportunities for fraud, the letter stated.

On Tuesday, three lawmakers from the Kenai Peninsula sent a letter to the governor — Reps. Sarah Vance, Ben Carpenter, and Rep.-elect Ron Gillham.

Seventeen states and Donald Trump have joined in the lawsuit, which University of Texas Law Professor Texas Steve Vladeck calls a stunt “relying on an obscure source of the Supreme Court’s power — its ability to hear disputes between states immediately without having them go through lower courts, known as “original jurisdiction.” But the claim at the heart of the suit has nothing to do with interstate relations — like a border dispute or litigation over water rights. Nor does it have anything to do with fraud. Rather, Texas is arguing that coronavirus-related changes to election rules in each state violate the federal Constitution, never mind that most states (including Texas) made such changes this cycle.”

“He needs to be removed,” said Assembly member Chris Constant.

“He needs to be 86’d,” said Assembly member Pete Petersen, evidently wanting to get rid of the man for good. The Urban Dictionary says that this means he needs to be killed.

Neither Assembly member realized their mics were still hot.

And so he was removed. Dustin Darden, activist and frequent candidate for office, was ejected from the Loussac Library’s Assembly Chambers.

Darden was not only removed, he was taken away in handcuffs by armed police after an outburst at the public podium, in which he blasted the Anchorage Assembly for not honoring the wishes of the public concerning economic sanctions on businesses.

Darden has been a participant at Assembly meetings for many years. He has never cussed while at the podium. He has never gotten violent. When the mask requirement was enacted in the chambers, he simply wore a cardboard box over his head in protest.

Darden is active as a sponsor of two petitions to recall members of the Assembly.

No one ever remembers him being kicked out, much less in handcuffs. Former Mayor Ethan Berkowitz used to take a time-out and chat with Darden in the back of the room, man-to-man.

But during the dire shutdowns and the new behavior rules the mayor and Assembly have imposed in recent months due to its fear of the COVID virus, Darden has become more strident at times.

On Wednesday night, he was agitated because of the way the Assembly had treated a previous member of the public, who had yielded a portion of her three-minute time to Darden.

Assembly Chair Felix Rivera had lectured the woman about being respectful. Here’s the tape:

Rivera shut the mic off immediately after Darden started yelling from behind the Plexiglas screen that has recently been installed to protect the assembly from the spittle of the public. That triggered Darden.

Darden raised his voice louder. He was shouting, pounding the podium and demanding the Assembly reverse the crushing shutdown orders against the Anchorage business community.

Rivera called security to have Darden removed. And then, as if by magic, the police arrived. They approached Darden, who had taken his seat, and they talked to him. Then Darden rose, put his hands behind his back, and was escorted out the side door.

The government-controlled audio of the meeting was shut off for several minutes while the incident took place. There is no question that Darden was out of order for a public meeting, but did they need to call the police, the members of the audience wondered.

After all, Rivera this summer allowed two men to lie in front of him during an entire meeting. The men were protesting. And Rivera allowed a Black Lives Matter protester to yell profanities at the Assembly in a loud voice this summer, and only thanked the man for his testimony.

But Darden is someone Chair Rivera has no tolerance for.

“Every business owner in Anchorage owes Dustin Darden a thank you. He consistently shows up every single meeting fighting for them when they won’t even show up for themselves,” said Bernadette Wilson, a civic activist who also shows up at meetings and who has organized rallies, and who has also pointed at the Assembly members and yelled at them without being called out of order.

Darden was never booked, and it appears he was not charged either. But the speed that police showed up to haul him out of the Assembly Chambers was impressive to those witnessing the spectacle.

During another section of testimony by the public, Assemblyman Chris Constant also objected to citizen Tim Rooney, who was making fun of the Assembly, as he described the types of themed sandwiches that local restaurants have made in honor of them, such as “Recall Rivera Sandwiches,” and “Curmudgeon Constant Croissants.”

Three Kenai Republicans have asked Gov. Mike Dunleavy to join in a lawsuit filed by the attorney general of Texas against four states — Pennsylvania, Georgia, Michigan, and Wisconsin — over elections.

“Trustworthy elections are a cornerstone of our constitutional republic,” they wrote. “Recent action by our judicial branch, with the effect of allowing absentee ballots to be accepted without a witness signature, is contrary to state law. The judicial branch has no constitutional authority to change state law in this matter.”

Signed by Reps. Ben Carpenter, Sarah Vance, and Rep.-elect Ron Gillham, the letter asked the governor to direct Acting Attorney General Ed Sniffen to join in the Texas lawsuit.

Texas has sued Georgia, Pennsylvania, Michigan, and Wisconsin over “unconstitutional irregularities” in the election process.

In a case filed with the U.S. Supreme Court, Texas Attorney General Ken Paxton says that the four states used the coronavirus pandemic to ignore state laws that govern absentee and mail-in voting.

At issue is that judges in the four states did away with security measures, among them signature verification and absentee ballot witness requirements. They also reduced election security by eliminating poll watchers.

The four states are the battlegrounds that President Trump won in 2016, but lost this year. Each modified their voting procedures in violation of their own state laws, the suit alleges.

Because those states are the key electoral votes that will determine the presidency, the lawsuit is throwing another wrench into the electoral vote calendar. The Electoral College is set to meet on Dec. 14 to cast their votes.

Alaska’s election procedures were also changed via a ruling by the Alaska Supreme Court. In October, after ballots had already started to be cast in the General Election, the high court ruled that the witness requirement for absentee ballots is unconstitutional during the COVID-19 pandemic.

The decision went in favor of the lawsuit brought by the ACLU-Alaska on behalf of the Native American Rights Fund, American Civil Liberties Union, and Lawyers Committee for Civil Rights Under Law.

The ACLU-Alaska said that the witness signature “serves no legitimate purpose,” an indication that the lawsuit group may try to make this a permanent injunction against the witness requirement for mail-in ballots.

The Alaska Supreme Court’s ruling was not challenged by the Texas Attorney General because there are only three electoral votes for Alaska, not enough to swing the election this year.

Georgia is worth 16 electoral votes, Pennsylvania has 20, and Michigan and Wisconsin have 16 and 10 — enough to tip the scale for Biden.

Also on Tuesday, the U.S. Supreme Court has turned down an emergency request from Rep. Mike Kelly, Republican of Pennsylvania, and other Republicans who sought to decertify the Pennsylvania election results, which member of Congress and other GOP activists to overturn President-elect Joe Biden’s win in Pennsylvania.