'We don't like it' becomes legal argument to recall - Must Read Alaska
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Saturday, January 18, 2020
HomeColumns‘We don’t like it’ becomes legal argument to recall

‘We don’t like it’ becomes legal argument to recall

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.

Art Chance
Art Chance

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. 

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Suzanne Downing had careers in business and journalism before serving as the Director of Faith and Community-based Initiatives for Florida Gov. Jeb Bush and returning to Alaska to serve as speechwriter for Gov. Sean Parnell. Born on the Oregon coast, she moved to Alaska in 1969.

Latest comments

  • No legal precedent, or basis in fact, for a recall. The lower court knows that. Good analysis, Art. The same can be said for Trump’s impeachment. No high crimes or misdemeanors rises to the threshold level. But impeach they did. Donkeys don’t like it when they lose elections. All that remains is to bray to the court and hope a Lefty judge gives a favorable decision. Trump and Dunleavy both will survive because enough Americans still understand what the ugly, miserable Democrats are up to.

  • Sorry losers threatened democracy. Sounds about right.

  • Sounds like sour grapes for Art here. The recall is fully legit. The courts know it. Those who don’t like it apparently did not pay attention to the decision.

    • I learned a long time ago in dealing with leftist unions that you just let them be themselves and they’ll hurt themselves, so you don’t have to do it to and take the heat. Like the spoiled children they are, they never think of the consequence of their action or what the other party might do with what they do or argue.

      Particularly on the charge of impermissibly using State resources for partisan purposes, they made a lot of admissions about the scope of the controlling law. People like me are going to get the transcripts of that piece and bludgeon them with it when, I said when, not if, the unions use public time or resources for partisan purposes in both this recall adventure and in the next election. Be careful what you ask for; next time you might not get away with turning State conference rooms and phones into union GOTV boiler rooms.

      • Spoiled children are a nuisance. They grow into fiscally irresponsible adults who complain about the system being unfair to them.

        Speaking of ignoring consequences, do you really think your credibility in this state is above water after your facebook posts were published for all to see?

        • Yes; nobody whose opinion I care about cares. If lefties don’t like it, it is probably a good thing. You a—- have called conservatives vile names for years, you just lose control of your bowels when somebody returns the favor. It is good to be hated if the right people hate you; I’d say it is good for you to hate me.

          • Art, it’s got bipartisan support to ignore your partisan and vile rants. You’re a partisan satirist whose only trick is toilet humor. If you think only liberals are turned off, note your sudden departure from the dunleavy admin. Unless they’re too liberal for you. And I wouldn’t confuse your toxic situation with hatred. You hate liberals. They and most everyone else just find you irrelevant and pathetic. It doesn’t get much sadder than a retiree on facebook talking about plowing stranger’s wives…

          • Art is sylogistically logical. Good argument!

  • I can’t believe I just read this. It’s about as surprising in its mendacity as the ruling was in its verity. I can’t wait for the Art’s sniffles after the Supremes rule.

    • Where’d you copy those big words that you obviously don’t understand from? I won’t sniffle and I won’t be surprised. I wouldn’t even bother with an appeal to the Supremes because they’re going to let the recall proceed. I wouldn’t give the leftist trash any more attention; let them start spending their Soros and union money getting signatures and hope they cheat like they usually do and noisily put some people in jail would be my way of dealing with it. Then I’d start on an initiative to reform the recall law to establish some cause standards and due process. Initiative would be the only way to do it because our Legislature has become worse than useless.

      • Soros, got it. Do you ever entertain that using the ‘deeep state’ handle is a loser? I’m shocked! that verity, a true principle or belief, as the foundation of the ruling or mendacity, untruthfulness as your post represents is somehow me not understanding these words. There isn’t anything wrong about vocabulary. Even you must agree.

  • These are the very same a—- that are responsible for the financial crisis the state is plagued with. Dunleavy wants to rein in the liberal mentality that pushes this.

  • Because, “Really, a lower court judge never goes far wrong by just sticking to what judges before him/her have decided on the issue;” in this case the Judge did not. We have never had a recall on the State level, because the Judge always finds the Grounds insufficient. It is not enough that enough voters sign the recall petition. It never moves forward and this time it did. That is why it is fully expected to go to the State Supreme Court and pass.
    Like Art, I agree that the Grounds are insufficient, and I too would rather see the People decide who gets recalled instead of the Courts. The shame is that the Judge passed this along when the Grounds are clearly insufficient. But this time the Court is making a political decision…

    • His point was that with the AKSC imposed liberal construction and the lack of objective cause and proof standards, naked assertion is legal grounds to proceed.

    • Insufficient grounds is a legal decision. If a court finds sufficient grounds then the recall can proceed. At that point, the voters would then decide whether said legal grounds are serious enough for them (the voters) to treat them as political grounds and approve the recall. The main problem at hand is that Dunleavy happens to take office after 40-yrs of irresponsible state budget mismanagement. The recallers are basically acting out because their free stuff is being curtailed by necessity.

      • Wayne, it’s silly that you would try to argue the recallers are acting out because their free stuff is being curtailed. Dunleavy was elected on giving free cash to Alaskans that the state could not afford. And he failed to balance the budget even enough to hand out a fraction of that free money promise. Your sour grapes is not an argument. And your understanding of the recall is warped at best. Just stick to the facts and try to keep your emotional state out of it.

  • Exactly right!! The cry babies didn’t win and just like what’s being attempted on our POTUS now they think it’s appropriate in all arenas… Dunleavy is the best person to serve Alaska… I will NEVER support a liberal.. Ever..GO DUNLEAVY!!!

  • Just attacking the winner of the election is all they have. No solutions. These recall efforts make a name for the naysayers and it is not complimentary.

  • Old way: campaign, election, swearing in, go to work. If your choice didn’t win, work toward next election.

    Now: campaign, election, swearing in, try to go to work. If Your choice didn’t win, recall, impeach, demonize, freeze government, ignore all else. New priority: undo election.

    Sad.

    • Donald, been that way a while. It’s also called democracy. Not a bad deal…

  • Good assessment. The lower court will always push off any decision if an appeal is likely. Easier to stick with a bad decision knowing that it will come back, but only after many months or even a couple of years.
    Dunleavy has nothing to worry about, anyway. The signatories all voted against him. Nothing new there. Therefore, much to do about nothing. No substantive factual basis to recall this governor, except feeeeeelings.
    Dunleavy will prevail.

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