Gail Fenumiai
AGO 19-7
No. 19-007
Alaska Attorney General Opinion
November 4, 2019
Gail
Fenumiai
Director
of Elections
Alaska
Division of Elections
P.O.
Box 110017
Juneau,
Alaska 99811-0017
Re:
Review of Application for Recall of Governor Michael J.
Dunleavy
Dear
Director Fenumiai:
You
have asked for the Department of Law’s opinion
regarding the application for recall of Governor Dunleavy
that was received by your office on September 5, 2019. Alaska
Statute 15.45.540 requires the director of the Division of
Elections (Division) to review the application and either
certify it or notify the recall committee of the grounds of
refusal.
I.
Summary of Opinion
The
application complies with the technical requirements of the
recall statutes.
1The timely filed application names an
elected official subject to recall and is accompanied by the
required payment. But, because the statement of grounds for
recall fails to satisfy the legal standards required for a
recall, we recommend that certification of the application be
denied.
II.
Background
Governor
Michael J. Dunleavy (“the Governor”) was elected
on November 6, 2018. On September 5, 2019, sponsors filed an
application to recall the Governor. The application provides
the following 158-word alleged grounds for
recall:
2
Neglect of Duties, Incompetence, and/or Lack of Fitness, for
the following actions:
1. Governor Dunleavy violated Alaska law by refusing to
appoint a judge to the Palmer Superior Court within 45 days
of receiving nominations.
2. 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.
3. 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.
4. 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).
The
application was accompanied by: (1) a $100 deposit; (2) a
statement that the sponsors are qualified voters; (3) a
designation of a recall committee of three sponsors who shall
represent all persons who signed the application; (4)
signatures of at least 100 qualified voters who subscribed to
the application as sponsors; and (5) signatures and addresses
of allegedly qualified voters equal to more than 10 percent
of those who voted in the last general
election.
3 The statement of grounds for recall also
references approximately 149 pages of additional material,
including an Office of Management and Budget
(“OMB”) Change Record Detail consisting of 144
pages and a Legislative Division of Legal and Research
Services Memorandum consisting of five pages. As discussed
further below, because this material takes the statement of
grounds far beyond the 200-word limit, it should not be
considered for purposes of determining whether the grounds
are factually and legally sufficient.
III.
Applicable law
The law
of recall in Alaska is found in (1) the Alaska Constitution,
(2) Alaska statutes implementing recall and establishing the
procedures and grounds for recall, and (3) court decisions
from the Alaska Supreme Court. Decisions from the Alaska
Superior Court are persuasive but not controlling
authority.
4 Additionally, prior opinions from the
Department of Law and court decisions from other states can
be helpful in interpreting Alaska’s recall statutes.
A. The
Alaska Constitution
Article
XI, section 8 of the Alaska Constitution permits recall of
all elected public officials in Alaska except judicial
officers. The constitution does not set forth the procedures
or grounds for recall, but instead empowers the legislature
to establish them.
B.
Alaska statutes
By
statute, an application for recall must meet the following
requirements:
• It must name a public official subject to recall:
governor, lieutenant governor or state legislator. AS
15.45.470.
• It must be accompanied by a deposit of $100. AS
15.45.480.
• It must be filed after the first 120 days in office
and no later than 180 days before the last day in office of
the official subject to recall. AS 15.45.490; AS
15.45.550(2).
•
It must be in the proper form, which requires:
1. the name and office of the person to be recalled;
2. the grounds for recall described “in
particular” in not more than 200 words;
3. a statement that the sponsors are qualified voters who
signed the application with the statement of grounds for
recall attached;
4. the designation of a recall committee of three sponsors
who represent all the sponsors and subscribers;
5. the signatures of at least 100 qualified voters who
subscribe to the application as sponsors for purposes of
circulation; and
6. the signatures and addresses of qualified voters equal in
number to 10 percent of those who voted in the preceding
general election.
AS
15.45.500.
•
It must adequately articulate at least one of the four legal
grounds for recall:
1. lack of fitness;
2. incompetence;
3. neglect of duties; or
4. corruption.
AS 15.45.510.
As the
Director of the Division, you are tasked with reviewing the
application and you must either certify it, if it meets the
technical and substantive requirements, or notify the recall
committee of the grounds for refusal to
certify.
5 Although the statutes do not specify a
timeframe for completing your review, you requested our legal
review be completed within sixty days, which falls on
November 4, 2019.
IV.
Standard of review
No
decision of the Alaska Supreme Court has addressed the
statutes governing recall of a state level official. The
Supreme Court has, however, twice addressed the recall
statutes for local officials found in AS 29.26, which differ
from the grounds for recall of a state elected
official.
6 Superior court judges have, nonetheless,
treated the Alaska Supreme Court’s recall decisions
regarding local officials to be controlling for recall
applications of statewide officials.
7
Some
general rules of review are noteworthy at the outset. The
reviewer
8 of a recall application is to “avoid
wrapping the recall process in such a tight straightjacket
that a legally sufficient recall petition could be prepared
only by an attorney who is a specialist in election law
matters.”
9 The statement of grounds contained within
the application must “give the officeholder a fair
opportunity to defend his conduct in a rebuttal limited to
200 words.”
10 And the application must stand or fall
based upon the words written by its sponsors—the
reviewer cannot “rewrite the allegations of the
petition in different language.”
[11] The reviewer
is to “delete severable individual charges from a
recall petition if those charges do not come within the
grounds specified by statute.”
12 This latter point is
important because “[t]he right to recall . . .
officials in Alaska is . . . limited to recall for
cause”—i.e., absent “cause”
(legal grounds for recall), there can be no
recall.
13
The
grounds for recall in the application must be both factually
and legally sufficient.
14 The reviewer is to ensure that only
factually and legally sufficient charges go to the
voters.
15 The reviewer should examine a recall
application similar to how a court reviews a motion to
dismiss a complaint for failure to state a
claim.
16 Applying this standard, the reviewer
should take the factual allegations as true.
[17] The question
for the reviewer is whether the facts, taken as true...
