Alaska Division of Elections Director Gail Fenumiai, in following a recommendation from Attorney General Kevin Clarkson, has rejected the recall application seeking to remove Gov. Mike Dunleavy from office.
Clarkson sent Fenumiai a 25-page legal opinion rejecting the application Monday afternoon, stating that the group’s legal reasons for recall were “factually deficient.”
“I asked the legal team to do a deep dive into the Alaska Constitution, discussions at the constitutional convention, the statutes, legislative history and case law, including looking at authorities from other states, in order to understand what standards must be met in the recall context,” Clarkson said in a statement. “As a matter of law, recall cannot be premised upon disagreements with the elected official’s policies.”
State law required the group to collect 28,501 signatures for the first step of the process. The group turned in 49,006 signatures on Sept. 5 along with a 158-word legal brief outlining alleged reasons for recall.
State law designates only a few legal grounds upon which a public official can be recalled: lack of fitness, incompetence, neglect of duties and corruption.
The recall group went with the first three.
Specifically, the group seeking Dunleavy’s recall cited the following as grounds for recall:
• Failing to appoint a Palmer Superior Court judge within the legally required 45-day time frame.
• Violating the Alaska Constitution by using state money to fund advertisements with partisan statements for supporters and against opponents.
• Violating the Alaska Constitution’s separation of powers clause by vetoing court funding over previous decisions upholding the validity of Medicaid funding for abortions.
• Demonstrating incompetence by vetoing Medicaid funding that he told the Legislature he didn’t mean to veto. Had the veto been allowed to remain, the mistake would have cost the state about $40 million.
Clarkson went on to state that neglect of duty was “the only legally pertinent ground” in the application, but still wasn’t enough.
“In order to meet the ground for neglect of duty, which is the only legally pertinent ground here, applicants must show an inability, willful neglect or outright illegal intent on the part of the elected official,” Clarkson said in a statement. “They must also show that this inability or intent is directly related to carrying out the substantive duties of the office. Mere procedural or technical failures are not enough.”
The attorney general also noted that he considers it difficult to prove whether the actions alleged as grounds for recall were Dunleavy’s direct actions or whether they were the work of others in the administration, essentially saying the governor shouldn’t be blamed for the potential ineptitude of his staff.
“The violation must be substantial in order to qualify. Moreover, applicants must show that the elected official was personally responsible,” Clarkson said. “Elected officials cannot be recalled for the acts of subordinates of which they were not aware and did not specifically authorize.”
Clarkson’s opinion noted that the application met the technical requirements for a recall application but that “the statement of grounds for recall fails to satisfy the legal standards required for a recall.”
In anticipation of a rejection like this, recall group spokeswoman Claire Pywell previously told the Daily News-Miner the group will likely appeal the decision with the courts. Pywell confirmed the plan Monday afternoon, noting the group plans to find a complaint with the Anchorage Superior Court Tuesday.
“We disagree with the AG’s decision because we’re confident what we submitted meets standard under Alaska standards for recall,” Pywell said. “We were prepared for either scenario. We knew it was likely that this could be the decision and we’re confident we’ll receive fair treatment in the courts and the recall will be able to move forward.”
Jahna Lindemuth, attorney for the recall effort, said the rejection is “without basis.” Lindemuth served as attorney general under former Gov. Bill Walker.
“We will now turn to the courts for a remedy. We do so with confidence that we will receive fair treatment and we will prevail,” Lindemuth said. “Alaskans should expect a prompt resolution of this dispute. The recall will continue forward.”
In a statement released Monday afternoon by the governor’s office, Dunleavy said the decision appeared to be “well reasoned.”
“As I have always said, the allegations by the recall group are not legitimate reasons to overturn the outcome of the statewide election held barely a year ago,” Dunleavy said. “My administration will continue governing the state as we have since the election in a manner that is consistent with the fundamentals of good government. My priorities continue to be making Alaska safer for all Alaskans, growing the economy and enacting a solution to the state’s budget deficit.”
Dunleavy appointed Clarkson as attorney general soon after taking office in 2018.
The only other attempted recall of an Alaska governor occurred in 1992, during which the Department of Law hired outside legal counsel in an effort to avoid the appearance of a conflict of interest.
Contact staff writer Erin McGroarty at 459-7544. Follow her on Twitter: @FDNMpolitics.