Judge rejects state’s effort to block Alaska Gov. Dunleavy recall campaign

Former Attorney General Jahna Lindemuth making oral arguments on behalf of the Recall Dunleavy campaign at the Boney Court House in Anchorage (Photo: Zachariah Hughes)

Backers of the effort to recall Alaska Gov. Mike Dunleavy got a win Friday from Anchorage Superior Court Judge Eric Aarseth, who rejected arguments by state lawyers that the basis for recall was legally insufficient.

Though Aarseth’s ruling allows the Recall Dunleavy campaign to move forward, opponents are expected to appeal to the Alaska Supreme Court.

The recall effort had been on hold since the Alaska Division of Elections, based on advice from Attorney General Kevin Clarkson, decided in November that the initiative did not meet legal standards. Aarseth disagreed and reversed that Friday, in a ruling from the bench.

“This court declines to restrict the voter’s right to affirmatively step into, admonish and disapprove of elected officials’ conduct in office,” Aarseth said, laying out a justification that embraced a liberal interpretation of state statutes in recall matters.

“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,” he said. “This is a question for the voters, and the [Alaska] Constitution makes that very clear.”

At a hastily organized news conference Friday evening, Dunleavy said he disagreed with Aarseth’s decision and would appeal the ruling.

Alaska Gov. Mike Dunleavy speaks to reporters at a news conference Friday. (Photo by Nat Herz / Alaska Public Media)

“If this 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.”

Lawyers for the state, as well as a group formed to defend Dunleavy called “Stand Tall With Mike,” have a few main points. Ballot statements can only be 200 words long, and they say in its current form the language is too vague and broad. Brewster Jamieson, one of the lawyers for “Stand Tall With Mike,” argued that since the language in the recall initiative isn’t specific enough, it amounts to just unfair innuendos.

“They lack particularity, they engage in a redefinition of the statutory grounds, and they attack discretionary acts and non-existent laws,” Jamieson said.

At the hearing, a lot of the arguments from the anti-recall side were focused on the language of the ballot statement. Jamieson and a lawyer from the state said that in order to fit multiple allegations into the 200 word limit, essential information and evidence was being left out, depriving voters of important context. They argued that because terms like “neglect” and “incompetence” are not defined in the ballot language, the Recall Dunleavy Campaign leaves the charges open to interpretation.

“RDC should not be allowed to present the signers and voters with a Sudoku puzzle, which is effectively what they are doing,” Brewster said. “This renders the entire application void.”

Lawyers for the recall campaign had a narrower line of argument. They attempted to show that the state had wrongfully dismissed their initiative, and so laid out a case that the effort is well within legal precedent over how Alaska law has been interpreted in similar instances. Arguing on behalf of the campaign, Jahna Lindemuth, the former Attorney General under Bill Walker, said the current administration and Attorney General have sought to quash the recall by “changing the rules of the game” when it comes to past legal decisions.

“This is not a recall based on policy disagreements, but actual violations of the law, and those allegations are alleged with particularity,” Lindemuth said, rebutting one of the key arguments made by the state.

Lindemuth used her time during oral arguments to explain that while the 200 word explanation in the measure might seem quite general, there are dozens of pages in court filings and plenty of press coverage that fully describe the violations. She covered all five of the incidents the campaign says demonstrate “neglect of duties, incompetence, and lack of fitness” on the part of the governor. A key point was that it should be up to voters to ultimately decide if the incidents are serious enough to warrant recall. And since terms like “neglect,” “incompetence,” and “lack of fitness” are not spelled out under the law, court precedent dictates they be interpreted liberally, according to the plaintiffs.

“The grounds are not defined in statute, and the Alaska Supreme Court has said in the absence of a statutory definition you must construe according to the common meaning, and the dictionaries are a useful starting point,” Lindemuth said.

The judge had already read the legal briefs from both sides, and after oral arguments it only took 10 minutes before he returned to the bench and gave the recall campaign the green-light to move forward. Aarseth said that signature booklets have to be sent out by February 10, although that could be slowed down if opponents are granted a stay by the Alaska Supreme Court.

Organizers say they plan on proceeding with the next phase of signature gathering unless the court intervenes. They now need to get support from 71,252 qualified voters in order to bring the recall to an election.

Dunleavy was set to address supporters at a Stand Tall With Mike fundraiser Friday evening in Anchorage, along with high-profile Republicans like former Alaska Senate President Pete Kelly and businessman John Binkley.

–Nat Herz contributed reporting.