Supreme Court decision allowing recall against Gov. Dunleavy to proceed focuses on voter discretion, vetoes

Jul. 20—The state's highest court has prioritized voter discretion and potentially limited the governor's veto authority in a decision last week that allows a recall effort against Gov. Mike Dunleavy to proceed.

The decision on Friday, in a 4-1 opinion, includes a scathing dissent from now retired Chief Justice Craig Stowers, who accuses his fellow justices of opening the door to "standardless recall petitions" by allowing recalls based on "ambiguous" grounds to go forward without judicial interpretation on their merits.

Dunleavy, a Republican, is up for re-election next year. The recall effort began in 2019, sparked by public outrage over cuts he proposed during his first year in office.

The recall petition makes four allegations against Dunleavy: the governor refused to appoint a Palmer Superior Court judge within 45 days as required by law; used state money for political campaigning; violated the separation of powers doctrine with a line-item veto of court system funding; and "acted incompetently" with certain Medicaid funding vetoes.

The legal fight started after the state elections director refused to certify the recall application, asserting it wasn't legally or factually sufficient.

The Alaska Supreme Court in May 2020 upheld a lower court ruling that said the Alaska Division of Elections had improperly rejected the petition seeking Dunleavy's removal.

But the decision outlining the ruling wasn't published and publicly available until last week. Stowers sat in on proceedings because he was on the court when the case began. Chief Justice Joel Bolger did not participate.

The 58-page opinion written by Justice Peter Maassen finds that if the petition meets legal grounds, then voters, not state elections officials or judges, should decide what justifies a recall.

The state had argued the Division of Elections and the courts "should act as gatekeepers to determine which allegations are serious enough to be presented to the voters" and called some of the accusations "harmless" and without long-term effect, Maassen wrote.

"But it is for the voters — not the Division or the courts — to judge the seriousness of an alleged ground," he wrote.

Specific to the line-item veto, any implication the state can pressure a court to rule a certain way to safeguard its budget sends a discouraging message, the opinion states.

The governor, in a statement issued after the decision was published, echoed Stowers' comments about a "standardless" process, saying the opinion subjects elected officials "at every level, and across the political spectrum, to baseless, expensive, and distracting recall elections by their political opponents. The court has made it clear that even plainly false allegations of wrongdoing can trigger this process, undermining our election process, and prevents our elected officials from focusing on the many serious issues facing Alaskans."

Stowers, in his partial dissent, said the veto aspects of the recall did not appear "legally sufficient."

The separation of powers doctrine isn't explicitly addressed in the Constitution, the courts funding cut was small enough it didn't harm operations, and the court didn't find the governor illegally used the veto to attack "the judiciary and the rule of law."

Stowers and Dunleavy both urged the Legislature to provide specific statutory definitions for recall grounds.

The decision does seem to have far-reaching implications in Alaska for vetoes that conflict with the separation of powers doctrine, said Scott Kendall, an attorney who helped craft the recall petition.

"That's a new curb on the line-item veto," Kendall said. "And maybe it always existed and it took this governor for the rule to have to be applied, but that's the noteworthy takeaway for us attorneys."

The line-item ruling is topical, given Dunleavy's veto this month of $2 million from the account used to pay lawmakers' per diem expense payments.

"No one's raised that issue in court," Kendall said. "But when the court broadly holds, 'Don't interfere with another branch with a line-item veto'...that's an interesting question that a lot of people are asking about."