Recall oral argument: Short, inaudible at times, and done


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.


  1. .I’m disappointed that the Judges are interfering with the minutes of the attorney and arguing on one point….recall based on Dunleavy breaking the law by not appointing a judge in the exact time set by law and court appointment rules. As if he doesn’t have additional areas of concern to gain time to do his job. There are other points due to almost nothing else to go on. (3) violations of law by Dunleavy……but the recall is based on trying to make the judges create new rules of the court and law to go on for the future, by this action against the governor. This is really important….because it doesn’t exist now or at the time of filing for recall. (So, Walker is really under handed on this score and so is Lindemuth..) They are trying to put Dunleavy out for a violation of the law that doesn’t exist at this time but will when the trial is over on new rules to look at on the decision of the court and the voters then decide again. Lindemuth is trying to make Dunleavy “incompetent” but that is a no brainer and the judges know that/ More tomorrow.

  2. The justices will write up their decision and provide justification for whatever choice they make. I think reading their positions and justifications will better demonstrate both precedent and the law.

    • My thoughts exactly. I’ve never seen anything like this in my life. (Oh wait – the US congress! November can’t come soon enough.) If voters here only had the power to change the AK supreme court by voting them out ~ wouldn’t that be something?

  3. Interesting that these very highly paid jurists now have but a fraction of work to perform compared to their normal workload, yet are being paid their full salary. The Alaska Supreme Court has almost shut down the court system because of the virus yet so far not a single judge has had to take a pay cut. Just about everyone in the private sector has been forced to carry some of the burden by taking pay cuts or losing their jobs while at the same time these black robed judges collect full pay without a mention of their failure to share the burden. Trust me when I say that the Alaska Court system takes a disproportionate amount of public money. That would be a good place to start cutting. Problem is that the Supreme Court members are indeed partisan and have always been so. Screw with their budget and this is exactly what you get. Retribution!

  4. The justices need to be careful. Today, no recall for judges. Perhaps there should be. And it sounds like they are on the verge of giving us an excuse. Cheers –

  5. What a waste of time. The whole world is trying to solve this coronavirus crisis and in Alaska, our court system is wasting their time to please the Democrats and special interest groups with this stupid, no-basis recall of our Governor.

  6. Can’t wait to see the names of the people who signed the petition while residing in Palm Springs during our harshest winter in 40+ years! Wonder if they also apply for a PFD!!!

  7. Lindemuth keeps saying that “it’s up to the voters.” Well guess what? The voters already decided. They elected Dunleavy. Criminal Bill Walker gets to roam Hawaiian beaches. Criminal Byron Mallott gets to continue hiding. And all the partisan gangsters from the Walker Administration should be quarantined from the Alaska public, so as never to interfere with an election again.

  8. When we have a judge explaining the difference between a law and a doctrine …. that is definitely a + for the governor’s side.

  9. We must preserve the fundamental tenants of democracy. Elections — those you support and those you don’t — are one fundamental tenant. If Dunleavy has the support everyone here says he has, then you don’t have anything to worry about. Just let the judiciary do their job and stop being such snowflakes.

    • Another idiotic statement from B, who wants to keep having elections until Democrats win. Ha. I doubt Democrats will be winning elections for a long time….
      as long as people like B chime in. Fools! Complete Fools!

      • ChrissyB, I really appreciate your feedback, and your eloquent style. You flatter me. Would you allow me one correction though? Regarding elections: I just want to keep having elections. Period. Regardless of the winner. I think elections are good. Or translated for you: me like election. me like vote. me smile at freedom.

        • B:
          you are a prisoner of delusionment and a slave to Liberalism, which is a mental disorder. Spare me with your eloquence. We know why you post here at MRAK. Trolls don’t donate money. They are opportunists, usually with little education and near zero common sense. Have a good day.

  10. Suzanne : You should have argued the People’s position in front of these elites, and let SOA sit at the table quietly.
    You could have given the Supremes an honest earful. Can’t wait for their multi-page decision from The Land of OZ.

  11. Since we tolerate law-breaking by our legislators is there any reason to expect anything different – even from our judicial system? Yes, violating the statute concerning The Permanent Fund Dividend is simply ignoring all the law specifies. We need an election NOW to clean out the lawlesslature!

    • There’s a problem here. The legislature can do anything it wants if it doesn’t conflict with the state constitution. That is why we have 120+ day long sessions of the legislature instead of the 90 day session put in place by the voters.
      The Gov. has a lot of discretion, but he can’t make law. He’s stuck trying to fit his (or, perhaps someday, her) agenda into the playing field the legislature maps out. In AK, the Gov. has a LOT of discretion. Should he (or she) attempt to run out of bounds, that’s when the court system comes in.
      The courts are bound by the word of law. Since words have imprecise meanings, this can get dicey. They have to determine what the constitution and statutes mean in real time, and they have to justify it by presenting their conclusions, for all to see, in writing. They cannot make law, or even pretend fully to understand all the implications of law. They have to deal with what is presented to them, whether it’s clothed in partisan rhetoric, which it will be, or in specious arguments that obfuscate the issue, which it will be.
      Now, that’s a challenge! Give ’em some space. Save your recriminations for the governor or the legislature. They are voted into office and we have every right to go after them if we don’t like what they do.
      But, they are not allowed to circumvent the law. That’s why we have the Supremes.

      • Yes…A group of people put forward by their lobbying body, with zero accountability, who many times use your “imprecise language” cloak to create law.

        The same group that ruled parents shouldn’t even be notified if their 14 year old daughter has an abortion?

        The same group that ruled the legislature could do whatever they wanted to with our PFD.

        I think you trust them because you like the way they rule- that’s fine but let’s not pretend there is something noble or objective about it. You didn’t like the outcome of the election, so you want a do-over, and this group of corrupt attorneys will give you that. Again- so be it- but it’s not a win for democracy, it’s a win for democrats, and if it’s one thing they have proven time and time again, it’s that they loathe the will of the people, and will do all they can to subvert it, as evidenced..

  12. I would hope that the Justices take a moment before issuing their decision and reflect on the impact of whatever that decision is on the legitimacy of the Court. If the Justices endorse an open, unfiltered and unnuanced recall standard, thereby allowing a recall based on raw politics, the Court should be prepared for whatever rage the voters manifest. Through the exercise of restraint, the Court has been relatively spared from the popular will and whim. If this approach is abandoned, they will experience the consequences.

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