Fenumiai, 120613 AKAGO, AGO JU2013200362

Docket Nº:AGO JU2013200362
Case Date:December 06, 2013
Gail Fenumiai
AGO JU2013200362
No. JU2013200362
Alaska Attorney General Opinions
December 6, 2013
         Gail Fenumiai          Director, Division of Elections          P.O. Box 110017          Juneau, Alaska 99811-0017          Re: Lindsey Holmes Recall Application          Dear Ms. Fenumiai:          You have asked for our opinion regarding the application for recall of House Representative Lindsey Holmes. Alaska Statute 15.45.540 requires the director of the Division of Elections to review the application and either certify it or notify the recall committee of the grounds of refusal.          The application’s statement of grounds for recall does not satisfy the legal standard for recall required by AS 15.45.510, in that the alleged facts, taken as true, are insufficient to state a claim for lack of fitness—the sole statutory ground for recall stated in the summary. Therefore, the application is not substantially in the form required by AS 15.45.550(1). We recommend the application be denied because Representative Holmes’s conduct in changing political parties is lawful and constitutionally protected.          I. Background.          On November 6, 2013, a recall committee filed a petition for the recall of Representative Lindsey Holmes, last elected from State House District 19 in 2012. The application provided the following summary of the grounds for recall, repeated here verbatim:
Representative Holmes has demonstrated unsuitable conduct, is unfit for office, and should be recalled. She has: Sworn on her Declaration of Candidacy that she was a Democrat. Membership in a political partly [sic] implies a certain political belief system and is an important factor by which voters evaluate a candidate. Made representations to district residents and her supporters that she would serve in the legislature as a Democrat. Solicited campaign contributions, making representations that she would serve in the legislature as a member of a Democratic caucus. Deceived voters by misrepresenting her intended political party. She formally changed her party affiliation from Democrat to Republican immediately before being sworn in. In doing so, she adopted the political and legislative philosophy voters elected her to oppose. Said, “I think in a lot of ways it has been something I’ve been moving toward for the entire six years I’ve been in the legislature.” As a representative, she joined the Republican caucus and voted for a Republican speaker and a Republican-led organization of the House. Misrepresented herself to voters and Division of Elections, thereby qualifying as deception, unfit conduct, and subject to recall vote.
         We review this application under applicable Alaska law.          II. Applicable law.          The law of recall in Alaska consists of the Alaska Constitution, the statutes implementing recall, and court decisions from both the supreme and superior courts. In addition, several Attorney General Opinions offer guidance.          A. The Alaska Constitution.          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.”          B. The recall statutes.          The statutory provisions governing the recall of legislators are set out in Title 15 of the Alaska Statutes. A valid application for recall of a state official under AS 15.45 must comply with the following provisions:
a. It must seek the recall of the governor, lieutenant governor, or a member of the state legislature.1
b. It must be accompanied by a $100 deposit.2
c. It must be filed after the first 120 days of the term and at least 180 days before the termination of the term of office of any official subject to recall.3
d. It must meet numerous technical requirements.
e. It must articulate at least one of the four grounds for recall: lack of fitness; incompetence; neglect of duties; or corruption.4
         As Director of the Division, you must review the application and either certify it or notify the recall committee of the grounds of refusal to certify.5 There are four grounds to deny certification: (1) the application is not substantially in the required form; (2) the application was filed during the first 120 days of the term of office of the official subject to recall or within less than 180 days of the termination of the term of office of any official subject to recall; (3) the person named in the application is not subject to recall; or (4) there is an insufficient number of qualified subscribers.6          The statute does not specify a required time frame for this review process.          C. Summary of Alaska recall cases.          1. Alaska Supreme Court cases.          a. Meiners v. Bering Strait School District          The leading Alaska case addressing recall petitions is Meiners v. Bering Strait School District, 7 which involved the attempted recall of an entire Regional Education Attendance Area (“REAA”) school board.8 The Meiners court reviewed the spectrum of perspectives on recall, ranging from a legalistic recall process that construes recall grounds and procedures narrowly in favor of the office holder to a political recall process in which there are no grounds required for recall and all doubts are resolved in favor of placing the recall question before the voters. The Meiners court suggested that, historically, Alaska “appears” to have fallen in the middle of this spectrum.9          In the context of the recall of a local official, the court was mindful of the possibility that recalls could be initiated in remote parts of the state by voters with limited access to legal resources. Accordingly, the court was reluctant to interpret the recall statutes too strictly. Thus, the court held that recall statutes, like initiative and referendum statutes, “should be liberally construed so that ‘the people [are] permitted to vote and express their will.’”10 The court held that “the recall process is fundamentally a part of the political process. The purposes of recall are therefore not well served if artificial technical hurdles are unnecessarily created by the judiciary as parts of the process prescribed by statute.”11          Because the applicable statute required the grounds for recall to be stated with particularity, the Meiners court reviewed two of the asserted grounds for sufficiency. The court found that the appropriate standard of review was to assume the alleged facts are true, and rule upon them similar to a court ruling on a motion to dismiss for failure to state a claim.12 The court reviewed the asserted grounds to determine whether they sufficiently stated a claim for “failure to perform prescribed duties, ” one of the specified grounds in the recall statute.          Ultimately, the court found that the recall committee stated a claim for failure to perform prescribed duties when the board, which by statute “employed” the district superintendent, allegedly failed to control the superintendent’s expenditures on non-district purposes and violated various provisions of law related to open meetings.13 The court additionally held that inaccurate legal statements or lack of legal citation would not invalidate the application. The court wanted to avoid “wrapping the recall process in such a tight legal straitjacket that a legally sufficient recall petition could be prepared only by an attorney who is a specialist in election law matters.”14          The court then considered whether any of the grounds should be deleted. The court held that the Division of Elections could not rewrite the allegations of the petition, but concluded that insufficient grounds should be deleted to avoid “abuse” and “the drafting of recall petitions with little regard for the statutory grounds of recall.”15 The court authorized the division to “delete...

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