A judge ruled Friday, Jan. 10 that an effort to recall Gov. Mike Dunleavy may proceed, a decision that is expected to be appealed.
The decision from the bench by Superior Court Judge Eric Aarseth in Anchorage followed arguments in the case and came two months after Gail Fenumiai, director of the state Division of Elections, rejected a bid to advance the recall effort.
Fenumiai has said her decision was based on an opinion from Attorney General Kevin Clarkson that found the reasons listed for recall were “factually and legally deficient.”
The Recall Dunleavy group has argued that Clarkson’s analysis was overreaching and the recall effort should be allowed to move to a second, signature-gathering phase. The state Department of Law has said the group’s claims lack specificity or fail to explain how the alleged conduct resulted in consequences justifying recall.
“This is not a mere policy disagreement, and the recall sponsors have alleged serious violations of the law” and constitutional issues, said Jahna Lindemuth, an attorney for the recall group who was an attorney general under Dunleavy’s predecessor, independent Bill Walker. She earlier argued that a showing of harm is not required.
Grounds for recall in Alaska are lack of fitness, incompetence, neglect of duties or corruption. The recall group is not alleging corruption.
Margaret Paton-Walsh, an attorney for the state, said the court has to give meaning to terms such as neglect, incompetence and unfitness, and “if you interpret them in this sort of extraordinarily broad way that the committee does, those terms essentially lose their meaning. Neglect becomes any sort of omission or failure to act. Incompetence becomes any mistake that you might make. Unfitness becomes doing something that the committee doesn’t like.
“And I think that, in order to maintain a meaningful for-cause recall, those terms have to be given real substance,” she continued.
Aarseth said it’s important to understand that 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, or some other elected official. This is a question for the voters.”
He said he believes he does not have discretion to create more stringent definitions than have been used by courts before and said lawmakers have not stepped in to suggest that definitions used previously have been too broad or too liberally applied.
Messages seeking comment were left for the Department of Law and Dunleavy’s office.
The recall group, among its claims, said the Republican governor, who took office in late 2018, violated the law by not appointing a judge within a required time frame, misused state funds for partisan online ads and mailers, and improperly used his veto authority to “attack the judiciary.”
Aarseth struck an allegation that said Dunleavy improperly used his veto to “preclude the legislature from upholding its constitutional Health, Education and Welfare responsibilities.” The judge said while it may be difficult to achieve a veto override, the legislature has that option.
He said petitions should be issued no later than Feb. 10, unless that date is stayed by the Alaska Supreme Court. If allowed to go forward, the recall group will need to gather at least 71,252 signatures.
Claire Pywell, who manages the recall group, said while celebrating the decision, “we also recognize that the real work begins, and we’ve been headed in the right direction the whole time.”
She called the ruling “a critical step in allowing the citizens of Alaska to exercise their constitutional right to recall.” She said the group would move as quickly as possible in collecting signatures.
According to the National Conference of State Legislatures, just three efforts to recall governors nationally have gathered enough signatures to prompt recall elections. In 2012, then-Wisconsin Gov. Scott Walker survived such an election.