State v. Recall Dunleavy

• Citation: 491 P.3d 343
• Decision Date: 16 July 2021
• Docket Number: Supreme Court No. S-17706
• Court: Supreme Court of Alaska (US)
• Parties: STATE of Alaska, Office of Lieutenant Governor, Division of Elections and Director Gail Fenumiai, in an official capacity, Appellants, v. RECALL DUNLEAVY, Appellee.

491 P.3d 343

STATE of Alaska, Office of Lieutenant Governor, Division of Elections and Director Gail Fenumiai, in an official capacity, Appellants,

v.RECALL DUNLEAVY, Appellee.

Supreme Court No. S-17706

Supreme Court of Alaska.

July 16, 2021

Margaret Paton Walsh, Assistant Attorney General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Appellants.

Jahna M. Lindemuth, Scott M. Kendall, and Samuel G. Gottstein, Holmes Weddle & Barcott, PC, Anchorage, Susan Orlansky, Reeves Amodio LLC, Anchorage, and Jeffrey M. Feldman, Summit Law Group, Anchorage, for Appellee.

Before: Winfree, Stowers, Maassen, and Carney, Justices, and Eastaugh, Senior Justice.^* [Bolger, Chief Justice, not participating.]

OPINION

MAASSEN, Justice.

I. INTRODUCTION

A recall committee submitted an application to the director of the Alaska Division of Elections seeking to recall the governor. The application cited lack of fitness, incompetence, and neglect of duties as grounds for recall and made four different allegations of how those grounds were met. The director refused to certify the application, asserting that it was not legally or factually sufficient.

The committee challenged the director's decision in the superior court. That court granted summary judgment for the committee, deciding that except for one allegation, which it struck, the allegations in the committee's application were legally and factually sufficient. The committee was allowed to move on to the second phase of signature-gathering on its recall petition; if it was successful, the director would call a special election to allow the voters to decide whether the governor should be recalled.

The State appealed, and we affirmed the superior court's decision in a summary order with an opinion to follow. We explain in this opinion why the committee's recall application satisfied the legal requirements for presentation to the voters.

II. FACTS AND PROCEEDINGS

The Alaska Constitution authorizes the people to recall elected officials and directs the legislature to establish the grounds and procedures for recall.¹ In September 2019, after gathering the requisite number of signatures,² the Recall Dunleavy recall committee filed an application with the Division of Elections to recall Governor Mike Dunleavy.³ The application contained this statement of grounds:⁴

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; and (b) preclude the legislature from upholding its constitutional Health, Education and Welfare responsibilities.

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).^[5]

By letter dated November 4, 2019, the Division's director notified the recall committee that she was denying certification of their application. The director cited the attorney general's advice that although the application met "the technical requirements of the recall statutes," it was "not substantially in the required form" as required by AS 15.45.550(1) because "the statement of grounds for recall [was] not factually and legally sufficient for purposes of certification."⁶

The recall committee challenged the director's decision by bringing this lawsuit.⁷ The parties filed cross-motions for summary judgment,⁸ and in January 2020 the superior court concluded that, with one exception, the recall application should have been certified. The court found that each of the recall application's allegations described with particularity for-cause grounds for recall with the exception of the third paragraph's subpart (b), which the court struck.⁹ The court ordered the Division to prepare petition booklets containing the four legally sufficient allegations.¹⁰ The State filed this appeal.¹¹

We held oral argument on March 25, 2020, then asked the parties for supplemental briefing on issues raised by the recall application's third paragraph about an alleged violation of the separation of powers: the historical basis of the line-item veto, constitutional limits on the line-item veto, and the legal framework we should use in analyzing the third paragraph's legal sufficiency.

On May 8, after considering the supplemental briefs, we issued an order affirming the superior court's decision of the issues now on appeal. This opinion explains our reasoning.

III. THE CONSTITUTIONAL AND STATUTORY BASIS FOR RECALL

"The Alaska Constitution provides that all political power is inherent in Alaska's people and ‘founded upon their will only.’ "¹² The people exercise their political power in a number of ways, including by voting in state and local elections,¹³ rejecting legislative acts by referendum, and legislating directly by initiative.¹⁴ As a corollary to the constitutional right to elect their leaders, the people have the right to petition to recall those they earlier put in office.¹⁵ Article XI, section 8 of the Alaska Constitution provides:

All elected public officials in the State, except judicial officers, are subject to recall by the voters of the State or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by the legislature.

The right of recall, along with the referendum and the initiative, gives "voters a check on the activities of their elected officials above and beyond their power to elect another candidate when the incumbent's term expires."¹⁶

A. The Constitutional Source Of The Right To Recall Elected Officials

The right to recall elected officials appeared in the American political system in the early 1900s, "frequently as a companion to the initiative and referendum."¹⁷ The right was codified in Alaska territorial law; the listed grounds for recall were malfeasance, misfeasance, and nonfeasance.¹⁸ The right was preserved at the Alaska Constitutional Convention preceding statehood. A drafting committee initially proposed a provision that reflected territorial law and listed four specific grounds for recall: malfeasance, misfeasance, nonfeasance, and conviction of a crime involving moral turpitude.¹⁹

Convention debates illustrate the tension between prescribing specific boundaries for the right of recall and leaving its scope completely to the voters. The convention first discussed changing "a crime involving moral turpitude" to just "a crime" in order to give the voters more latitude.²⁰ Delegate John Hellenthal, who proposed the amendment, argued that "[a]ny crime should be the grounds for recall and then leave it to the good judgment of the people to determine whether the crime was severe enough for them to warrant signing the petition."²¹ Delegate Ralph Rivers opposed the amendment, arguing that an official should not be subject to recall for misdemeanors such as minor traffic offenses or jaywalking.²² The delegates voted down the amendment.²³

Delegate Vic Fischer then proposed deleting the specified grounds for recall in favor of allowing the voters to decide in each instance whether the grounds alleged by recall proponents were sufficient.²⁴ Delegate Hellenthal supported this amendment, noting that no other state's constitution prescribed the grounds for recall;²⁵ he argued that the convention could always amend the provision later to give that task to the legislature.²⁶ The delegates agreed to delete the specified grounds.²⁷

The delegates next discussed whether they should direct the legislature to provide the grounds for recall by statute or let the voters decide on a case-by-case basis.²⁸ Delegate Fischer again urged that it be left to the voters,²⁹ though he proposed that the constitutional provision include more procedural detail.³⁰ Other delegates voiced concern about covering too much ground in the Constitution and spending too much of the convention's time on minutiae.³¹ Delegate Fischer's amendment was rejected.³²

Delegate Barrie M. White proposed another amendment allowing the people to determine the grounds for recall.³³ He argued that "[t]he vital part of the recall movement ... is that the people retain not only the right to recall a public official but to name the reasons for instituting such action and let the action itself stand or fall on the merits of the case."³⁴ Delegate James Hurley disagreed: "I think it is fair to leave it to the legislature to prescribe the grounds under which a recall petition should be circulated so as to prevent circulation of recall petitions for petty grounds in local jurisdictions by some recalcitrant officer who was not elected, which I have seen happen in my own community."³⁵

The convention ultimately adopted the language now in Article XI, section 8, leaving it to the legislature to prescribe the grounds and procedures for recall.³⁶ And despite the delegates’ "spirited debate" on the subject,³⁷ no consensus emerged about what the grounds for recall should be. Without substantive guidance on this issue from the Constitution's framers, the Alaska legislature in 1960 first prescribed the grounds and procedures for recall of state...