By ART CHANCE
Once again I was up at oh-dark-thirty on a cold morning and someplace I didn’t really want to be.
I was representing MRAK and covering the hearing on the summary judgments in the Dunleavy recall matter.
It’s been awhile since I’ve been in a hearing room, but at least these days I can show up without a suit and a tie tied with fearful symmetry. Instead of the front table, I now get to sit as inconspicuously as possible in the back of the room and diligently take notes, then try to explain what happened.
First, this was not any sort of trial as most people understand that word; there was no factual evidence presented nor witness testimony, and there was no jury, and no verdict determining whether or not the Governor was recalled.
This was really just boring legal stuff and the outcome was totally predictable.
In a summary judgment proceeding, the parties have to agree that there are no disputes of fact and that the court has unchallenged jurisdiction. In a matter such as this, the allegations made by the plaintiff, the complaining party, are presumed to be true.
The only questions are questions of law as to whether the complaint is sufficient in facts and law to move to the next step, in this case an appeal to the Supreme Court or absent an appeal, to move into the recall process.
Alaska’s recall law limits the complaint and response to two hundred words; I’d have trouble ordering lunch in 200 words, and I’m a pretty good technical and legal writer.
The Recall Dunleavy mob just plays emotion on allegations of incompetence and unfitness; they don’t define them, and they don’t really provide any objective examples.
In one attempt, Allegation 3(B) they tried to pose an example, and the judge threw it out as legally insufficient, and he’s right. This whole thing is a sham.
When I did this sort of stuff for a living, I always advised my principals that if they started a beef that was going to court and involved major interests, especially Democrat interests, they could expect to lose any motions to dismiss, any motions for injunctions, and almost always to lose in the trial court; in the State’s cases, the Superior Court.
I did this stuff for about 25 years and I can count on my fingers the times the State won a motion to dismiss, or won on a temporary restraining order or an injunction.
I can count on my fingers the times in my area that we ever won at the Superior Court level. Yet, I can also count on my fingers the times we lost at the Supreme Court level.
There a several reasons for this; the most charitable is that the judges generally believe that the State can afford the time and money and can fix anything with money, so they’ll let a matter proceed until somebody decides it isn’t worth it to appeal again.
Second, in high profile cases, Superior Court judges would just as soon let the Supreme Court decide rather than take the heat themselves.
And the worst case, and there are some, is the judge who thinks that if he just does the Democrats a “great service” s/he’ll get the next appointment by a Democrat governor to the Court of Appeals or the Supreme Court. There is not a lot of majesty in the Law.
I’ll not join some of my conservative/Republican friends in criticizing Judge Aarseth; the Alaska Bar and Bench is generally liberal and was designed by the Founders to be that way. If you don’t like it, amend the Constitution.
Until then, if you’re a conservative learn to live with it and win; they’re liberal, but they’re not stupid, so you have to take a position that would embarrass them if they ruled against you.
Aarseth’s decision to deny summary judgment is actually a conservative decision. The only surprise for me is that he did throw out one of the plaintiffs’ allegations, but even that was a decision based on Alaska Courts’ decisional precedence.
Really, a lower court judge never goes far wrong by just sticking to what judges before him/her have decided on the issue; let the big guys sort it out or pitch it to the Legislature.
Aarseth basically did that: He laid this on the Legislature. There’ve been some pretty controversial recall cases and the Legislature has on several occasions considered the recall law in Title 15; they’ve never seen fit to change the cause standards for recall.
As Judge Aarseth opined; recall is fundamentally a political rather than legal process, and he chose not to have the Judiciary intercede in that process. If we wanted to have a really wonky and legalistic discussion, I could quarrel with his decision, but I understand why he did it and don’t think it was fundamentally wrong.
What is important about this for conservative/Republican activists is that this was a blatant exercise in “lawfare.”
This is an utterly BS complaint; it is utter leftist craziness. The communists, excuse me, Democrats set up their recall project before the Governor even took office; this was a recall looking for a reason, the same thing we’re dealing with in the sham impeachment of President Trump.
We really need to look at our recall laws, but we don’t control the House, the Senate is practically a Quisling Majority, so that look at the law isn’t likely.
Right now, “We don’t like it” is a legal basis to recall a rightfully elected governor. So, I think we need to stand behind Governor Dunleavy to actually stand up to the lawfare campaign; we’ll be there.
It’s time to go win an election rejecting recall.
Art Chance is a retired Director of Labor Relations for the State of Alaska, formerly of Juneau and now living in Anchorage. He is the author of the book, “Red on Blue, Establishing a Republican Governance,” available at Amazon.
