The Alaska Supreme Court today heard a half hour from each side of the Division of Elections vs. Recall Dunleavy Committee case. The two sides argued their positions by telephone due to the coronavirus outbreak and only three of the Supreme Court justices were in the courtroom. The other two called in from Fairbanks, as the court practiced social distancing and kept all observers out of the courtroom.

Reception on Gavel Alaska was at times difficult for those tuning in to observe the historic proceedings, and some of what the lawyers and justices said was unintelligible.

Each side put forth their best arguments about whether the Recall Dunleavy Committee has a legally solid enough case to take to the voters and ask them whether they want to remove Gov. Mike Dunleavy prior to the next gubernatorial election. The group is busy collecting signatures; it needs over 70,000 to get onto a statewide ballot.

Justice Craig Stowers seemed particularly uncomfortable wading into what is pure partisan politics, and began the proceedings by tersely explaining, perhaps a writer listening in, that this proceeding would be handled as fairly as any other before the court.

Margaret Paton-Walsh, on behalf of the State Division of Elections, argued that the petition language is subverting the ballot process because it refers voters to outside material that they will not likely have meaningful access to, and that extends the recall group’s actual verbiage for far more than 200 words limited by law. That aspect of the recall petition breaks the intent of the the 200-word limit for recalls, she said, and puts the whole ballot into imbalance.

With that extra material that serves as an addendum to the 200-word limit, it lays out vast complaints against the governor that he only has 200 words to respond to.

But that argument didn’t appear to move the justices. They interrupted Paton-Walsh several times, and forced her to eat up time on her half-hour limit trying to explain the argument to them.

None of the justices seemed curious about Item 1 of the Recall Dunleavy petition. The five asked no questions that wondered whether when a governor takes a time-out before appointing a judge and misses the 45-day legislatively determined statute, he or she is being an actual “law breaker.”

In fact, Justice Craig Stowers referred to appointment controversies under Governors Walter Hickel and Frank Murkowski, saying, “This is not something new to governors; governors at some frequency chaff at the judicial selection process, but statute requires an appointment in 45 days.”

The statute that applies to the judicial appointment timing is legislative direction, not a misdemeanor or felony level of infraction, however, but that seemed lost on the justices. None seemed intellectually curious about how the Alaska Constitution also governs the process, and that Dunleavy met his constitutional duty by “filling a vacancy” in the Palmer District Court. There was, in fact, never any actual vacancy by the time he made the appointment.

Ironic in the proceedings was that attorney Jahna Lindemuth, arguing on behalf of the Recall Dunleavy Committee, was herself part of a “law-breaking” administration that didn’t follow Alaska Statute when issuing a Permanent Fund dividend.

When she was sworn into office, she and Gov. Bill Walker broke statute by allowing the dividend to be a political calculation. Under Lindemuth’s terms, Walker should have been recalled for breaking the law.

Also problematic was Item 2 in the charges the Recall Dunleavy Committee is making: The committee says Gov. Dunleavy violated Alaska law and the Constitution by misusing state funds for partisan political purposes.

Here, the judges didn’t appear concerned about whether the word “partisan” is being used correctly in the allegation. Because of the intentionally misleading language, the voters will not know that the governor was merely trying to drum up public support for his key policy pieces that were not partisan — things like a full Permanent Fund dividend and a state spending limit. He was trying to move his legislation out of committee. Instead, the voters reading the ballot language are being led to believe that he somehow took state money to use in a campaign or some other nefarious use.

But again, the trickery in the petition and ballot language didn’t seem to concern the judges.

They did seem a bit more concerned about Items 3 and 4 on the recall petition:

Item 3 says Dunleavy  violated separation-of-powers by improperly using the line-item veto to attack the judiciary and the rule of law.

Justice Daniel Winfree, speaking from Fairbanks by teleconference, asked Lindemuth about the “separation-of-powers” claim her group is making. He noted that the concept of separation is a doctrine, not a law, which guides governing bodies in interpreting the constitutionality of actions and who, in government, is entitled to do certain things.

Lindemuth, arguing for the Recall Dunleavy Committee, said that it’s up to the voters to decide and that the court should “reject legislating from the bench.”

Winfree asked Lindemuth: Since it’s a doctrine, not a law, how one would determine legal sufficiency of the claim?

Lindemuth responded that it should be determined by the voters.

The justices didn’t seem convinced on that point, with Justice Stowers noting that “I don’t even understand how the separation doctrine fits here.”

The separation of powers issue refers to the governor vetoing some of the appellate court’s budget last year. At least two of the judges expressed skepticism, saying that vetoes are within the governor’s constitutional authority. This was logic they did not apply to Item 2: The governor also has constitutional protection to aggressively advocate for his policy platform without being subject to a recall.

Item 3 also puts the judges in an awkward position. Two of the charges by the Recall Dunleavy Committee refer to matters involving the court, but Item 3 involves the court’s very operating budget. For the judges to let that go to the voters might look like they are taking out their budget displeasure on the governor, which could be viewed as a separation-of-powers issue — activist judges working to unseat a governor because he cut their budget.

The fourth item also raised the eyebrows of at least some of the justices. That charge says that the governor was incompetent because he mistakenly vetoed approximately $18 million more than he told the Legislature that he intended to veto. That veto was reversed when the administration discovered the error, and all parties agree no harm was done.

Justice Susan Carney, calling in from Fairbanks, wondered if any mistake made by an elected official could be deemed substantial enough for a recall, even if there was no harm done, as is was in this case.

Recall attorney Lindemuth said that should be left to the voters.

If the justices allow item 4 to stand, they’ll be essentially ruling that if a governor gets up in the morning and puts on one brown shoe and one black shoe, that is evidence of incompetence and might subject him to a recall.

The ballot initiative language that the Division of Elections said was legally insufficient:

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).

Arguing for the Division of Elections, State Department of Law Attorney Margaret Paton-Walsh told the justices that the language on the ballot question itself was problematic because it refers to documents outside the 200-word limit, sending voters to documents that most have no way to access in the voting booth. This gives the Recall Dunleavy Committee an advantage but puts the voters at a loss, since they cannot reasonably understand what actually occurred by reading the ballot language itself.

Because of the purposefully misleading the language in all counts, the recall petition is deeply flawed. But the “facts” of the allegations themselves were not something the judges seemed concerned about.