Alaska judge okays next step in recall of Governor Mike Dunleavy

"Recall Dunleavy" protestors at the Alaska Federation of Natives in October 2019. (Photo by Patty Talahongva)

Joaqlin Estus

'This is a question for the voters, and the constitution makes that very clear'

Alaska Superior Court Judge Eric Aarseth ruled on Jan. 10 in favor of the “Recall Dunleavy” campaign, and ordered the director of elections to certify a recall application submitted in September. That clears the way for the next round of signature collection and, potentially, a special election asking voters if they want Gov. Mike Dunleavy removed from office.

However, the judge also noted that the state of Alaska had already stated its intention to appeal his ruling to the Alaska Supreme Court, which could lead to the process getting put on hold — again.

The application, or petition, included more than 40,000 signatures of Alaskans seeking to have the governor removed from office, well over the required minimum of 28,501 people or 10 percent of voters.

“The recall process is fundamentally a political process. This is not an issue for the judicial branch to decide whether the governor should stay in office or not. This is a question for the voters, and the constitution makes that very clear,” Aarseth said.

If Aarseth’s decision stands, the next step for petitioners would be to gather the signatures of 71,252 people or 25 percent of registered voters. The judge gave the state 30 days, or until Feb. 10, to prepare petitions for the next round of signatures. The successful collection of those signatures would trigger a special election on removal of the governor from office.

Aarseth’s ruling stems from Gail Funumiai’s November decision against certification of the recall petition. Funumiai is the Alaska Division of Elections Director. Her decision was based on the advice of Alaska Attorney General Kevin Clarkson, who stated the petition failed to meet statutory grounds for recall.

The petition alleges neglect of duty, incompetence, and lack of fitness on the part of Gov. Dunleavy. Clarkson cited definitions of those terms that emphasize the recall process is not to be used for trivial, unintended, technical, or procedural issues. In court, attorneys for the state said the allegations against the governor were vague and too broad.

However, Aarseth sided with recall campaign attorneys who said earlier court rulings did not apply such strict definitions. “This court is of the opinion that it just doesn't have the discretion to create more stringent definitions than have already been used by the courts before it,” Aarseth said.

The judge noted he’s seen legislators step in many times to change laws after a court ruling met their disapproval, but in these instances, the “Legislature has not stepped in to suggest that the definitions that have been used have been too broad or too liberally applied.”

Accordingly, Aarseth said, “This court declines to restrict the voters right to affirmatively step in to admonish and disapprove of elected officials’ conduct in office as they have a right to do through the initiative referendum and the recall process.”

Alaska Public Media reports that shortly after the ruling, Dunleavy responded at a press conference, saying, “If this [decision] is to stand, what happens now is there’s really no standard, no hurdle to be recalled,” Dunleavy said. “This becomes a political recall, and you can be recalled for any reason at all.”

Alaskans had backed the recall with enthusiasm. In just over a month, the campaign collected thousands more signatures than needed to meet the minimum requirements. The additional signatures were to cover any disqualifications and to give Alaskans a means to voice their disapproval of the governor.

The enthusiasm was fueled in large part by Dunleavy’s drastic budget cuts over the summer to state agencies and programs. The University of Alaska, the Alaska Marine Highway System, childhood education, low-income senior benefits, and public assistance as well as public broadcasting all saw significant budget cuts.

Some of the vetoed line items were a match to federal funding, which means a loss of up to a billion dollars paid by the federal government to the state. Some of the cuts were immediate, giving little to no notice to state employees who lost their jobs.

Many Alaska Native leaders said the budget cuts would disproportionately affect predominantly Alaska Native rural Alaska. Richard Peterson, Tlingit, is president of the Central Council of Tlingit and Haida Indian Tribes of Alaska, which represents 32,000 tribal citizens.

“This isn’t an issue of Democrat or Republican but an issue of this administration has really kind of declared war on Alaska. And the ones who are going to feel that crunch especially are rural Alaskans,” Peterson said.

Alaska has a $66 billion savings account and no state-wide income or sales tax. The state dispenses annual permanent fund dividends to every eligible state resident. Despite the budget cuts, the state has not lived up to Dunleavy’s campaign pledge to pay dividends of $3,000 per person.

Differing views on grounds of recall

Here are two examples of opposing views on alleged grounds for the recall of Gov. Dunleavy.

Petitioners said Dunleavy violated the state constitution and Alaska law by refusing to appoint a judge within 45 days of receiving nominations from the non-partisan Judicial Council. In what appeared to be a challenge to the council’s authority to select nominees, Dunleavy announced he was not going to appoint a judge to the Palmer Superior Court until he received the council’s justification for rejecting certain candidates.

Alaska attorney general Kevin Clarkson acknowledged Dunleavy missed the 45-day deadline. However, he said Dunleavy did appoint a judge, albeit after the deadline. Clarkson stated that since the position was not vacant, the judicial system was not harmed. By the definitions he cited, the petition “must show an inability, willful neglect, or outright illegal intent on the part of the elected official.” He said, “Mere procedural or technical failures are not enough.”

Another charge was that Dunleavy violated separation of powers when he used a budget cut to retaliate against a court ruling. The Alaska Supreme Court in February 2019 upheld a decision that prevented restrictions on Medicaid funding for abortions. Dunleavy cut nearly $335,000 from the Supreme Court’s budget, explaining that that’s the amount the state pays to cover elective abortions under Medicaid. The petition said Dunleavy also vetoed constitutionally required health, education and welfare funding.

Clarkson said, “The governor’s use of the constitutionally granted line-item veto authority is absolutely legal, purely discretionary, and disputes over policy cannot be grounds for recall.”

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Joaqlin Estus, Tlingit, is a long-time Alaska journalist and a national correspondent for Indian Country Today. 

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