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Mat-Su Borough results: One seat is too close to call

Suzanne Downing
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0
Mat-Su Borough results: One seat is too close to call

CONSERVATIVES DID WELL IN LOCAL ELECTION

About 50 people gathered at the Americans for Prosperity Alaska offices in Wasilla for an election night party on Tuesday to watch the results as they came in for the local election — the first time it has been held on the first Tuesday of November in the Mat-Su.

More than 4,248 voters turned out on the “off year” election, and the hotly contested Assembly District 1 seat is still too close to call, since absentee ballots have not been counted — and there are likely to be a lot of those.

[View the election results at this link]

The results tonight, without those absentee ballots give Tim Hale, who has strong Democrat support, a slight edge with two votes, close enough for a recount.

Moderate Stephanie Nowers won decisively in Assembly District 2, against incumbent Lamarr Anderson.

The School Board went conservative with Jim Hart, Ryan Ponder and Jeff Taylor winning seats.

“It was a well-run race and am pleased to win but it’s time to get to work. we have extremely low test scores, we’ve got the work of hiring a new superintendent, and that superintendent is going to be told to dig to the bottom of the problem of the low test scores, we’re going to be looking for answers,” said Hart.

Assembly District 1

  • ENDLE, Brian – 983
  • HALE, Tim – 981
  • BUSH, J. Bruce – 111
  • MILLER, Ryan A. – 21

Assembly District 2

  • NOWERS, Stephanie – 610
  • ANDERSON, LaMarr L. – 511
  • MAXSON, Elizabeth A. “Liz” – 72
  • DONEY, Faunus M. – 33

School Board District 2

  • HART, James E. “Jim” – 600
  • MICHAELSON, Ray – 574

School Board District 5

  • PONDER, D. Ryan -296
  • HARTLEY, Alma N. – 183

School Board District 7

  • TAYLOR, V. Jeff – unopposed – 359

ACLU pleads with court to take Dunleavy’s veto pen

Suzanne Downing
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8
ACLU pleads with court to take Dunleavy’s veto pen

ATTEMPTS TO REMOVE CONSTITUTIONAL AUTHORITY

The ACLU today made the argument that the Alaska Supreme Court should override the governor’s constitutional authority to a line-item veto.

In a case that involves the separation of powers and one half percent of the Court System’s operating budget, Stephen Koteff, lawyer for the ACLU, told Judge Jennifer Henderson that the governor abused his constitutional authority and undermined the public confidence in the court when, on June 28, he made his veto decisions.

Dunleavy’s veto was not overridden by the Legislature, which is generally the way the political system works. Politics is, after all, much about dividing up tax receipts and assigning value to different programs.

“Show me your budget, and I’ll tell you what you value,” is a well-known political adage, often attributed to Joe Biden.

In his budget explanation, Dunleavy expressed his values when he said that some of the court’s money would be used to pay for the Medicaid-funded abortions that the Supreme Court was demanding come from the state treasury.

Jessica Leeah, the lawyer representing the State of Alaska, told the judge that the case is inherently political, and advised against having one judge step into the shoes of the governor and the entire Legislature, and decide whether the $335,000 cut should be restored. After all, the Legislature could have overridden the veto, but didn’t even try.

She asked the court to dismiss the case, and said that if the governor had not provided an explanation of that sort for his budget veto, there would be no lawsuit. There is also no proof that such a small cut had harmed the court, she said; in fact, Chief Justice Joel Bolger had written that the court’s duties would continue on.

“The ultimate arbiter for a governor’s vetoes is the electorate,” Leeah said, asking the judge to exercise judicial restraint.

ACLU ComplaintDownload

Chief Justice Bolger was not in the meeting, but figured prominently in the room, as both sides discussed his recent public pronouncements about an independent judiciary, both on the Court System’s home page, and also in remarks he made at Alaska Federation of Natives Convention in Fairbanks.

The ACLU lawyer said that Bolger was clearly stating that the court was facing a great deal of political pressure, but the State’s attorney Leeah said the justice’s statements were general in nature and could have related to the recent vote that went against the retention of Judge Michael Corey, who was guided by legislation known as SB 91 when allowing an offender to walk free after attacking a woman.

Because Bolger’s name was brought up in court, it’s unclear if either side would have the courage to swear him in on the witness stand to explain what he meant, if Judge Henderson allows the case to proceed.

Judge Henderson asked the State’s attorney far more questions than she asked of the ACLU’s lawyer, interrupting Leeah several times. Henderson asked both sides questions about whether the ACLU is the appropriate plaintiff, and if not, whether there is another likely plaintiff who might bring a lawsuit that showed actual damages. The State’s position is that the ACLU is not a qualified plaintiff because it has not been harmed, while the ACLU says the veto represented an “unprecedented threat to the judiciary,” and that Dunleavy was retaliating against the courts over abortion, thus there are constitutional issues.

Not brought up by either side was the question of whether a governor has a right to free speech and expressing his views on court decisions. If, in budget notes, a governor may not express his political opinion, will the court open itself up to a lawsuit from the governor himself based on First Amendment rights? Such an outcome could mean this matter could end up in a federal court.

The ACLU and Planned Parenthood were well represented in the courtroom. Oddly, Vic Fischer, who was one of the authors of the Alaska Constitution, had been positioned by the ACLU in the front row, to give the plaintiff’s argument extra moral edge and give the judge a good view of the nonagenarian (he is 95-1/2).

On the other side, only a handful of pro-Life advocates showed up. Judge Henderson did not say when she will make her decision on the case, but it’s sure that the matter will be referred to the Alaska Supreme Court, where Justice Bolger will no-doubt assign it to one of his fellow judges.

Recall group files appeal in Superior Court

Suzanne Downing
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26
Recall group files appeal in Superior Court

Recall Dunleavy, the group trying to remove the governor with a special recall election, has filed an appeal of the Attorney General’s decision that their complaint lacks merit.

The appeal, signed by former Gov. Bill Walker Attorney General Jahna Lindemuth in Superior Court in Anchorage, comes a day after the Division of Elections rejected the group’s initial application for signature-gathering petitions. The appeal was expected, and was also signed by former Gov. Walker’s former chief of staff Scott Kendall.

Recall Dunleavy ComplaintDownload

Lindemuth says the director of the Division of Elections is denying the group their constitutional right to a recall petition. She is arguing that when the director of the Division of Elections makes a determination that “the application is in the required form, the director must assume that all allegations made are true and valid.

According to this argument, if the recall petition says that the governor hates green jello, the director of the Division of Elections must assume that the allegation is true for the purposes of her decision to allow or prohibit the matter from proceeding.

The arguments made in the recall petition accuse the governor on these grounds:

  • That he violated statute by not appointing a judge within 45 days of receiving nominations from the Alaska Judicial Council.
  • That he violated statute by using state funds to make statements on partisan issues. This relates to social media and postcards from the governor’s office in support of a full Permanent Fund dividend.
  • That he violated separation of power by using a line-item veto on the Alaska Court System. The Recall Dunleavy group is arguing he does not have the power of the veto pen when it comes to the court system.
  • He was incompetent when he mistakenly vetoed $18 million more than he had intended to veto, although the group admits that the error was corrected.

The Recall Dunleavy attorneys — Lindemuth, Kendall, Sam Gottstein, Jeffrey Feldman, Susan Orlansky — are asking for an injunction so that the Recall Dunleavy group can start collecting signatures for the next phase of the recall process.

They are also asking for their attorney fees to be covered by the State of Alaska.

[Read: Attorney General says recall petition lacks valid reasons.]

Listicle: Alaska is No. 1 in smoking pot in fed’s survey

Suzanne Downing
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15
Listicle: Alaska is No. 1 in smoking pot in fed’s survey

STATES WITH HIGH POT USE ARE LEAST RELIGIOUS

Alaskans smoke the most weed per capita in America, with 16.29 percent of the population admitting to using pot in the past year.

That’s over 119,000 Alaskans consuming cannabis, if the numbers from the Substance Abuse and Mental Health Services Administration are to be believed. Or one out of every seven man, woman, and child in Alaska.

Vermont comes in a close second at 16%, followed by Colorado at 15%.

All of the states on the list of “highest number of users” are either in the West or are in the northern part of the country.

The rest of the top states:

  • 4. New Hampshire: 14.88%
  • 5. Massachusetts: 14.55%
  • 6. Oregon: 14.44%
  • 7. Rhode Island: 14.32%
  • 8. Washington, D.C: 14.29%
  • 9. Maine: 13.56%
  • 10. California: 12.88%
  • 11. Washington: 12.84%
  • 12. New York: 12.83%
  • 13. Connecticut: 12.53%
  • 14. Montana: 12.21%
  • 15. Michigan: 12.16%
  • 16. Hawaii: 12%
  • 17. Delaware: 11.86%

GOT RELIGION, ALASKA? NOT SO MUCH

Not surprisingly, the states where pot use is the highest just about perfectly inverse in terms of religiosity, according to research from the Pew Research Center.

From most religious to least, Alaska ranks fifth from the bottom on Pew’s 2019 list:

  • 1. Alabama 77%
  • 2. Mississippi 74%
  • 3. Tennessee 71%
  • 3. Louisiana 71%
  • 5. Arkansas 70%
  • 6. South Carolina 69%
  • 7. West Virginia 64%
  • 7. Georgia 64%
  • 7. Oklahoma 64%
  • 10. Texas 63%
  • 10. Kentucky 63%
  • 12. North Carolina 62%
  • 13. Virginia 60%
  • 14. New Mexico 59%
  • 15. Utah 58%
  • 16. South Dakota 57%
  • 17. Missouri 56%
  • 17. Ohio 56%
  • 19. Nebraska 54%
  • 20. Iowa 53%
  • 20. Florida 53%
  • 20. Indiana 53%
  • 20. North Dakota 53%
  • 24. Arizona 51%
  • 24. Pennsylvania 51%
  • 24. Idaho 51%
  • 27. Kansas 50%
  • 27. New Jersey 50%
  • 27. Maryland 50%
  • 27. District of Columbia 50%, No. 8 for pot use
  • 27. Michigan 50% religious, No. 15 for pot use
  • 27. Illinois 50%
  • 33. Wyoming 49%
  • 34. Rhode Island 48% religious, No. 7 for pot use
  • 35. California 47% religious, No. 10 for pot use
  • 35. Colorado 47% religious, No. 3 for pot use
  • 37. Delaware 46% religious, No. 17 for pot use
  • 37. Minnesota 46%
  • 39. Oregon 45% religious, No. 6 for pot use
  • 39. New York 45% religious, No. 12 for pot use
  • 41. Nevada 44%
  • 41. Montana 44% religious, No. 14 for pot use
  • 41. Hawaii 44%, No. 16 for pot use
  • 41. Washington 44% religious, No. 11 for pot use
  • 41. Wisconsin 44%
  • 46. Connecticut 42%, No. 13 for pot use
  • 47. Alaska 41% religious, No. 1 for pot use
  • 48. Maine 34% religious, No. 9 for pot use
  • 49. Massachusetts 33% religious, No. 5 for pot use
  • 49. New Hampshire 33% religious, No. 4 for pot use
  • 51. Vermont 32% religious, No. 2 for pot use

Lawyers file suit over Pioneer Home rates

Suzanne Downing
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14
Lawyers file suit over Pioneer Home rates

Notorious blogger/attorney Libby Bakalar has asked a Ketchikan judge to certify a class-action lawsuit and stop the state Department of Health and Social Services from raising the rates at the Alaska Pioneer Homes.

Bakalar is the attorney who last year was released by the Dunleavy Administration and who is suing the governor and his former chief of staff Tuckerman Babcock over her separation of employment. She was an at-will employee, as most attorneys are at the Department of Law. Her own case is pending.

In her latest suit, she name three plaintiffs: Marion and Howard Rider and Eileen Casey. She names Commissioner Adam Crum and Pioneer Homes Director Clinton Lasley as defendants, along with Gov. Michael Dunleavy.

Bakalar and her co-attorney Vance Sanders of Juneau ask for an injunction and say the rate increases, which occurred in the same year as a $12.3 million cut to the Pioneers’ Homes, are adverse for the 497 residents of the elder-care facilities across the state.

Similar to the case going forward on the budget cuts to the courts system, this case asks the court system to override the role of the appropriators in the Legislature and the Executive Branch in running the State of Alaska. The lawsuit puts the courts in the driver’s seat for both appropriations and rates and fee schedules.

Rates at the Pioneer Homes are variable, depending on the level of care needed. They range from $3,600 per month to $15,000 per month; financial assistance is available for those residents who cannot pay those fees.

But many residents actually have the means to pay more than they are paying; they simply don’t because they are trying to preserve their estate for their heirs. The Pioneer Homes are setting new rules that ask their clients to be more forthcoming about their actual finances.

Without the new rates the State of Alaska is paying for most of the care of elders, rather than families helping out by liquidating their elderly residents’ assets to assist with their care, and then turning to Medicaid for help when their funds run low.

Bakalar-Pioneer-Home-lawsuitDownload

The State Department of Health and Social Services has already said existing residents won’t be forced to move out under the new rates.

If the injunction is approved by the judge, the State would have to return to the old fee schedule while the class action lawsuit got organized. Right now it has but three plaintiffs, but Bakalar says she could be representing as many as all 497 of the residents of Pioneer Homes.

It’s not uncommon to judge shop, but it’s just as likely that Bakalar filed in Ketchikan for other reasons, such as knowing that her reputation in Juneau is associated with her foul-tempered, man-hating blog, as well as her pending lawsuit to force the governor to rehire her as an assistant attorney general.

Court will hear dispute involving court budget cuts, Medicaid-elective abortion

Suzanne Downing
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5
Court will hear dispute involving court budget cuts, Medicaid-elective abortion

On Tuesday afternoon, in Courtroom 30A of the Boney Courthouse in Anchorage, the American Civil Liberties Union and the Dunleavy Administration will cross swords over whether a governor has a right to cut the Alaska Supreme Court’s budget.

And at stake is whether judges can decide if a governor’s reasoning for a budget cut to their branch of government is legitimate.

Gov. Michael Dunleavy cut some $335,000 from the Alaska Supreme Court budget’s administrative budget, as part of his efforts to reduce state spending. That is less than half of one percent of the court’s budget.

In his budget veto explanation, Dunleavy said that the legislative and executive branch both oppose the State of Alaska paying for elective abortions with Medicaid funds.

“…the only branch of government that insists on state-funded elective abortions is the Supreme Court. The annual cost of elective abortions is reflected by this reduction,” the Dunleavy budget writers wrote in the explanation for the cuts.

The problem at hand is that the Alaska Supreme Court, even as late as February, has insisted on the State paying for non-medically necessary abortions.

The American Civil Liberties Union says these abortions are constitutionally mandated, and Joshua Decker, the executive director of the ACLU-Alaska, will make that case in court on Wednesday.

The Dunleavy Administration is likely to say it has the authority to veto funds, and the Legislature has the authority to override those vetoes — something that didn’t happen. The appropriation function is not in the jurisdiction of the courts.

Superior Court Judge Jennifer Henderson, a registered nonpartisan, will hear the case; she was a district court judge before becoming a Superior Court judge under Gov. Bill Walker. In 2016, she was retained by 61.2 percent of voters and doesn’t come up for retention until 2022.

Planned Parenthood put out the call today to supporters of abortion to head for the courthouse with signs to bring the court of public opinion to bear on the matter during the hearing. The oral arguments start at 3 pm, with Planned Parenthood planning to show up at 2 pm.

AG opinion: Recall grounds are insufficient

Suzanne Downing
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AG opinion: Recall grounds are insufficient

Attorney General Kevin Clarkson announced today that the stated reasons for a recall of Gov. Michael Dunleavy are insufficient, “failing to meet factual and legal requirements under the controlling statutes.”

“I asked the legal team to do a deep dive into the Alaska constitution, discussions at the constitutional convention, the statutes, legislative history, and case law, including looking at authorities from other states, in order to understand what standards must be met in the recall context,” said Attorney General Clarkson in a statement. “As a matter of law, recall cannot be premised upon disagreements with the elected official’s policies.” 

With respect to the application to recall Dunleavy, Clarkson stated, “in order to meet the ground for neglect of duty, which is the only legally pertinent ground here, applicants must show an inability, willful neglect, or outright illegal intent on the part of the elected official.  They must also show that this inability or intent is directly related to carrying out the substantive duties of the office.

“Mere procedural or technical failures are not enough. The violation must be substantial in order to qualify. Moreover, applicants must show that the elected official was personally responsible. Elected officials cannot be recalled for the acts of subordinates of which they were not aware and did not specifically authorize.  The recall application failed to make these showings. The grounds of incompetence and lack of fitness, as a matter of law, were not applicable here.”

Click here to review the Attorney General Opinion.

The recall application was submitted on September 5, 2019. Director Fenumiai requested that the Department of Law complete its legal review within 60 days, despite the lack of any statutory timeline to make a decision. The Department of Law met the requested timeline and submitted its opinion to the director on November 4, 2019.

Director of the Division of Elections Gail Fenumiai notified the sponsors today that, based on the conclusions in the Attorney General opinion, certification was denied. Recall Dunleavy and any other interested party have 30 days to challenge the denial of certification.

For more information, see the Division of Elections website.

Check back, as this story will be updated.

Mike and Rose Dunleavy off to Japan on trade trip

Suzanne Downing
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8
Mike and Rose Dunleavy off to Japan on trade trip

Gov. Michael Dunleavy and First Lady Rose Dunleavy are in Japan this week to promote Alaska’s wild seafood and natural resources, meet with leaders in the energy, minerals, and seafood industries, and build upon the long relationship between Japan and Alaska.

“Alaska has long and mutually beneficial business and cultural relationships with Japan – my goal is to strengthen our existing trade relationships and pursue new opportunities for investment,” said Gov. Dunleavy in a statement. “When I say Alaska is open for business, that includes pursuing international opportunities in the Pacific Rim and elsewhere around the world. Alaska has so much to offer.” 

The Dunleavys will participate in several events while in Japan:

  • The 50th anniversary of the introduction of Alaska LNG in Japan.  Gov. Dunleavy will tour the Negishi LNG Receiving Terminal, where the first delivery of Alaska LNG was delivered 50 years ago today. The governor will meet with executives from Tokyo Gas.
  • Dunleavy will speak at an Alaska Seafood Marketing Institute Seafood Trade Luncheon and give interviews to seafood trade newspapers about Alaska’s sustainable and healthy wild seafood industry.
  • Dunleavy will tour the Toyosu Smart Energy Center, a cutting-edge redevelopment near Tokyo producing hot and cold water and steam from a high-efficiency, environmentally friendly centralized plant to residential and business buildings in that area.
  • The governor will meet with representatives of DOWA Metals and Mining, the company that is a major investor in the proposed Palmer Project outside Haines. DOWA purchases ore concentrate from the Red Dog Mine in the Northwest Arctic region and the Greens Creek Mine on Admiralty Island.
  • [Read: Doctors in Haines oppose mining, miners]
  • Dunleavy will be interviewed by Nikkei, the leading daily financial newspaper in Japan.

Tshibaka: Public Defender Agency sits on vacancies, over-counts caseloads

Suzanne Downing
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Tshibaka: Public Defender Agency sits on vacancies, over-counts caseloads

STILL RECEIVED A 10 PERCENT INCREASE IN ITS FUNDING

After being on the job for less than a year, Commissioner of Administration Kelly Tshibaka and a group of her assigned investigators in the Oversight and Review Unit have completed a 65-page study on the Public Defender Agency that shows the agency was not filling up to 20 percent of vacancies and, because of its quirky way of counting cases, was over-counting the caseloads of staff attorneys.

In fact, the report shows the Public Defender Agency is offloading much of the work that is primary to it; it’s handing it over to the Office of Public Advocacy, a little-known legal agency that focuses on legal work for elders, youth, and other vulnerable Alaskans.

[Read the entire 65-page report here]

Alaska’s Commissioner of Administration goes after data. As a former federal Acting Inspector General for the Federal Trade Commission, she looks for inefficiencies, waste, and fraud. She says her findings of the Public Defender Agency aren’t the worst she’s seen in her career, but there are structural problems that the agency has the power to correct. If it wants to.

The oversight report comes not long after former Attorney General Jahna Lindemuth accused the Dunleavy Administration of budget cuts that “bleed” the agency’s ability to take care of indigent legal defense needs.

Not so, said Tshibaka today. In fact the the Public Defender Agency received a $1.16 million budget increase in the Dunleavy budget than it did in the FY19 budget approved by Gov. Bill Walker. That equates to a 5.2 percent increase in one year. It allows the Public Defender Agency to hire 10 more positions. 

There was more. Gov. Michael Dunleavy signed HB 49, to roll back the lenient provisions in the much-maligned “crime wave bill” Senate Bill 91. HB 49 had another $1.3 million for the Public Defender Agency to hire 10 more positions, nearly another 5 percent increase.

But wait, there was more. Another $900,000 in supplemental funding was authorized by Dunleavy for the FY19 “indigent defense service caseload.” The Administration also agreed to pay each attorney’s $660 Alaska Bar Association annual dues.

And yet, the agency operated with a vacancy rate of 8-20 percent in some sections.

“The PDA has been intentionally holding open 4-7 vacancies for several years, drawing from its personal services funds to pay for other expenses, like contractor services. This has intensified its staffing challenges, particularly in regional offices,” the report says.

Tshibaka said that if the vacancies were filled, the caseloads would come down, but since the agency operates independently the Dunleavy Administration cannot force the Public Defender to hire those positions.

She also said that although it was difficult to accurately determine the caseloads of attorneys in the Public Defender Agency due to inconsistent reports, the range is between 145-154 cases per attorney, within professional standards across the nation.

Thus, the claim that the agency is constitutionally out of compliance because of caseloads is false.

The assessment of the Public Defender Agency shows that it counts cases differently than the Office of Public Advocacy. One case is often counted two or three times, and handled inefficiently, making it appear that the workload is more than it is.

For example, if a client is assigned a Public Defender at PDA, but the agency decides it has a conflict because it is representing another client involved in the case who has an adverse interest, the first client is referred to the OPA, but the PDA gets to count it as a case.

The OPA is taking on more and more conflict cases, when it was really set up to do guardian ad litem work.

Examples include the murder of David Grunwald in 2016, involving five teens; and the murder of Cynthia Hoffman at Thunderbird Falls, which involved six people, three of them teens.

Between those two murders, nine of the 10 cases were sent to the OPA.

The Public Defenders Agency uses a weighted system when counting caseloads, and it “conflicts out” of cases because the agency does not put silos around its work so that attorneys can work on cases without having a conflict with another client.

“If the PDA cannot find ways to substantially reduce the conflict rate, it risks undermining its core mission of being the primary agency providing constitutionally mandated, court-appointed legal representation for indigent clients,” the report summary says.

The legal agency also has attorneys doing work that should be done by assistants or paralegals. Because the Public Defender has total control over his or her budget, he/she can add more attorneys or restructure to add more paralegals, who could handle many of the functions now being done by attorneys.

“The PDA would operate more efficiently if it hired more support staff to assist its attorneys and provided better training for those staff. This would reduce the felt-caseload burden on the PDA’s current attorneys by leveraging more effectively the skill of the paralegals and other support staff,” according to the investigators.

The agency, being examined by the Department of Administration for perhaps the first time, began to make changes after the former Public Defender Quinlan Steiner quit in April, one day after an interview with Commissioner Tshibaka.

The new Public Defender, Sam Cherot, was careful in her response, but attended a press conference held in Anchorage this morning by Commissioner Tshibaka.

“The PDA actively cooperated with DOA in their review of the Agency’s workloads, management, and operations,” Cherot said in a prepared statement. “In my new role as Public Defender, I am committed to considering the findings and recommendations of this report, and the part they may play in the development of long-term solutions and goals for the agency.”

Watch for Part II: A deep dive into recommendations by the Department of Administration’s Oversight and Review Unit.

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