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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska, Office of Lieutenant Governor, Division of Elections and Director Gail Fenumiai, in an official capacity v. Recall Dunleavy (7/16/2021) sp-7542
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, OFFICE OF )
LIEUTENANT GOVERNOR, ) Supreme Court No. S-17706
DIVISION OF ELECTIONS and )
DIRECTOR GAIL FENUMIAI, in an ) Superior Court No. 3AN-19-10903 CI
official capacity, )
)
O P I N I O N
Appellants, )
)
No. 7542 - July 16, 2021
v. )
)
RECALL DUNLEAVY, )
)
Appellee. )
)
A
ppeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric Aarseth, Judge.
Appearances: Margaret Paton Walsh, Assistant Attorney
General, Anchorage, and Kevin G. Clarkson, Attorney
General, Juneau, for Appellants. Jahna M. Lindemuth, Scott
M. Kendall, and Samuel G. Gottstein, Holmes Weddle &
Barcott, PC, Anchorage, Susan Orlansky, Reeves Amodio
LLC, Anchorage, and Jeffrey M. Feldman, Summit Law
Group, Anchorage, for Appellee.
*
Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
----------------------- Page 2-----------------------
Before: Winfree, Stowers, Maassen, and Carney, Justices,
* [Bolger, Chief Justice, not
and Eastaugh, Senior Justice.
participating.]
MAASSEN, Justice.
STOWERS, Justice, dissenting in part.
I. INTRODUCTION
A recall committee submitted an application to the director of the Alaska
Division of Elections seeking to recall the governor. The application cited lack of
fitness, incompetence, and neglect of duties as grounds for recall and made four different
allegations of how those grounds were met. The director refused to certify the
application, asserting that it was not legally or factually sufficient.
The committee challenged the director's decision in the superior court.
That court granted summary judgment for the committee, deciding that except for one
allegation, which it struck, the allegations in the committee's application were legally
and factually sufficient. The committee was allowed to move on to the second phase of
signature-gathering on its recall petition; if it was successful, the director would call a
special election to allow the voters to decide whether the governor should be recalled.
The State appealed, and we affirmed the superior court's decision in a
summary order with an opinion to follow. We explain in this opinion why the
committee's recall application satisfied the legal requirements for presentation to the
voters.
II. FACTS AND PROCEEDINGS
TheAlaskaConstitution authorizes thepeopletorecall elected officials and
directs the legislature to establish the grounds and procedures for recall.1 In September
1
Art. XI, § 8; see AS 15.45.470-.720 (providing statutory framework for
(continued...)
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2
2019, after gathering the requisite number of signatures, the Recall Dunleavy recall
committee filed an application with the Division of Elections to recall Governor Mike
3 4
Dunleavy. The application contained this statement of grounds:
Neglect of Duties, Incompetence, and/or Lack of Fitness, for
the following actions:
Governor Dunleavy violated Alaska law by refusing to
appoint a judge to the Palmer Superior Court within 45 days
of receiving nominations.
GovernorDunleavyviolated Alaskalawand theConstitution,
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.
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.
Governor Dunleavy acted incompetently when hemistakenly
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.
1 (...continued)
recall).
2 See AS 15.45.500(3) (requiring number of signatures on recall petition
"equal in number to 10 percent of those who voted in the preceding general election").
3 See AS 15.45.480 (providing that recall process is initiated by filing of
application).
4 See AS 15.45.510 (listing grounds for recall).
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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). 5
Byletter datedNovember 4, 2019, theDivision's director notifiedtherecall
committee that she was denying certification of their application. The director cited the
attorney general's advice that although the application met "the technical requirements
of the recall statutes," it was "not substantially in the required form" as required by
AS 15.45.550(1) because "the statement of grounds for recall [was] not factually and
legally sufficient for purposes of certification."6
The recall committee challenged the director's decision by bringing this
lawsuit.7 The parties filed cross-motions for summary judgment,8
and in January 2020
the superior court concluded that, with one exception, the recall application should have
been certified. The court found that each of the recall application's allegations described
with particularity for-cause grounds for recall with the exception of the third paragraph's
5 See AS 15.45.500(2) (requiring that "grounds for recall [be] described in
particular in not more than 200 words"). Here, the attorney general's advice to the
director gave an approximate word count of 189 including the "references section" but
"not including subsection letters such as (a) or (b), and with statutory citations treated
as one word (i.e., 'AS #')." That the count is under 200 words appears undisputed.
6 See AS 15.45.550 (listing bases for denial of certification).
7 See AS 15.45.720 (providing right to judicial review of Division's
determination).
8 See Alaska R. Civ. P. 56(c) (allowing summary entry of judgment without
trial when undisputed facts demonstrate party is entitled to judgment as matter of law).
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9
subpart (b), which the court struck. The court ordered the Division to prepare petition
10 11
booklets containing the four legally sufficient allegations.
The State filed this appeal.
We held oral argument on March 25, 2020, then asked the parties for
supplemental briefing on issues raised by the recall application's third paragraph about
an alleged violation of the separation of powers: the historical basis of the line-itemveto,
constitutional limits on the line-item veto, and the legal framework we should use in
analyzing the third paragraph's legal sufficiency.
On May 8, after considering the supplemental briefs, we issued an order
affirming the superior court's decision of the issues now on appeal. This opinion
explains our reasoning.
III. THE CONSTITUTIONAL AND STATUTORY BASIS FOR RECALL
"The Alaska Constitution provides that all political power is inherent in
9 Paragraph3(b)alleged,"Governor Dunleavyviolatedseparation-of-powers
by improperly using the line-item veto to . . . preclude the legislature from upholding its
constitutional Health, Education and Welfare responsibilities." The superior court held
that this allegation did not implicate a prescribed ground for recall: because the
Legislature has the ability to override a Governor's veto, "a Governor can never prevent
the Legislature from fulfilling its Constitutional duties with his/her veto power." The
superior court amended the third allegation to read: "Governor Dunleavy violated
separation-of-powers by improperly using the line-item veto to attack the judiciary and
the rule of law."
10 See AS 15.45.560. The superior court later entered a stay on the
preparation of booklets pending this appeal. We lifted the stay, and the recall committee
began the second phase of signature gathering on February 21. See AS 15.45.610
(providing that a petition may be filed "only if signed by qualified voters equal in
number to 25 percent of those who voted in the preceding general election").
11 An independent expenditure group, Stand Tall With Mike, participated in
the proceedings in the superior court but chose not to participate in this appeal.
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12
Alaska's people and 'founded upon their will only.' " The people exercise their
political power in a number of ways, including by voting in state and local elections, 13
14 As a
rejecting legislative acts by referendum, and legislating directly by initiative.
corollary to the constitutional right to elect their leaders, the people have the right to
petition to recall those they earlier put in office.15 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.
The right of recall, along with the referendum and the initiative, gives "voters a check
on the activities of their elected officials above and beyond their power to elect another
12 Meyer v. Alaskans for Better Elections , 465 P.3d 477, 478 & n.1 (Alaska
2020) (quoting Alaska Const. art. I, § 2 ("All political power is inherent in the people.
All government originates with the people, is founded upon their will only, and is
instituted solely for the good of the people as a whole.")).
13 Alaska Const. art. V, § 1 ("Every citizen of the United States who is at least
eighteen years of age, who meets registration residency requirements which may be
prescribed by law, and who is qualified to vote under this article, may vote in any state
or local election.").
14 Alaska Const. art. XI, § 1 ("The people may propose and enact laws by the
initiative, and approve or reject acts of the legislature by the referendum."); see also
AS 15.45.010-.245 (providing procedures for law-making by initiative); AS 15.45.250-
.465 (providing procedures for approving or rejecting legislative acts by referendum).
15 See Unger v. Horn, 732 P.2d 1275, 1277 (Kan. 1987) (explaining nearly
identical provision in Kansas Constitution: "The electors are as qualified to determine
the capability and efficiency of their elected officials, after giving those officials an
opportunity to perform the duties of their offices, as they were when they first selected
the officials to fill the positions.").
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16
candidate when the incumbent's term expires."
A. The Constitutional Source Of The Right To Recall Elected Officials
The right to recall elected officials appeared in the American political
17
systemin the early 1900s, "frequently as acompanionto the initiative and referendum."
The right was codified in Alaska territorial law; the listed grounds for recall were
18
malfeasance, misfeasance, and nonfeasance. The right was preserved at the Alaska
ConstitutionalConventionpreceding statehood. Adrafting committeeinitially proposed
a provision that reflected territorial law and listed four specific grounds for recall:
malfeasance, misfeasance, nonfeasance, and conviction of a crime involving moral
19
turpitude.
Convention debates illustrate the tension between prescribing specific
boundaries for the right of recall and leaving its scope completely to the voters. The
convention first discussed changing "acrimeinvolving moral turpitude"to just "a crime"
20 Delegate John Hellenthal, who proposed the
in order to give the voters more latitude.
amendment, argued that "[a]ny crime should be the grounds for recall and then leave it
to the good judgment of the people to determine whether the crime was severe enough
16 Meiners v. Bering Strait Sch. Dist., 687 P.2d 287, 294 (Alaska 1984).
17 Id.
18 Id. (citing ch. 90, SLA 1949).
19 Constitutional Convention Committee's Proposal No. 3 (Dec. 9, 1955)
("Section 6. Every elected public official in the State, except judicial officers, is subject
to recall by the voters of the State or subdivision from which elected. Grounds for recall
are malfeasance, misfeasance, nonfeasance, or conviction of a crime involving moral
turpitude. The legislature shall prescribe the recall procedures.").
20 See 2 Proceedings of the Alaska Constitutional Convention (PACC) 1207-
16 (Jan. 4, 1956).
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21
for them to warrant signing the petition." Delegate Ralph Rivers opposed the
amendment, arguing that an official should not be subject to recall for misdemeanors
22
such as minor traffic offenses or jaywalking. The delegates voted down the
amendment.23
Delegate Vic Fischer then proposed deleting the specified grounds for recall
in favor of allowing the voters to decide in each instance whether the grounds alleged by
recall proponents were sufficient.24
Delegate Hellenthal supported this amendment,
25
noting that no other state's constitution prescribed the grounds for recall; he argued that
the convention could always amend the provision later to give that task to the
26 27
legislature. The delegates agreed to delete the specified grounds.
21 Id. at 1207-08 ("[A] public official unlike an ordinary citizen should be
beyond reproach, and irrespective of the nature of the crime he should be subject to
recall. That does not mean he has to be recalled if he commits a crime, but he should be
subject to recall.").
22 Id. at 1209-10.
23 Id. at 1212.
24 Id. at 1214-15 ("[E]very public official should be liable to recall for
whatever grounds the people feel are justified. . . . Let['s] leave it to the people. If they
feel a man should be kicked out of his job, let the people do it.").
25 Id. at 1216.
26 Id. ("If there is any doubt about whether the grounds can be properly
prescribed by the legislature, a very simple amendment to line 7 adding the words, 'The
legislature shall prescribe the recall procedure and grounds' therefore would solve it.").
27 2 PACC 1222 (Jan. 5, 1956).
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The delegates next discussed whether they should direct the legislature to
provide the grounds for recall by statute or let the voters decide on a case-by-case basis. 28
29 though he proposed that the
Delegate Fischer again urged that it be left to the voters,
30 Other delegates voiced
constitutional provision include more procedural detail.
concern about covering too much ground in the Constitution and spending too much of
the convention's time on minutiae.31 Delegate Fischer's amendment was rejected.32
Delegate Barrie M. White proposed another amendment allowing the
people to determine the grounds for recall.33 He argued that "[t]he vital part of the recall
movement . . . is that the people retain not only the right to recall a public official but to
name the reasons for instituting such action and let the action itself stand or fall on the
28 Id. at 1222, 1233-34.
29 Id. at 1233-34.
30 Delegate Fischer proposed specifying the number of signers needed for a
valid recall petition, requiring a 200-word statement of the grounds for recall, and
specifying the time within which a recall election should be held. Id. at 1233. He also
recommended amending the section to specifically authorize the legislature to prescribe
additional procedures. Id. at 1234.
31 See, e.g., id. at 1234 (statement of Del. Frank Barr) ("Some of us forget that
we were sent here to write a constitution, not to make detailed laws."); id. at 1235
(statement of Del. Robert J. McNealy) ("[I]f we continue we may not have the best
constitution in the United States but we will sure have the longest."); id. (statement of
Del. Irwin L. Metcalf) (stating he would vote against this amendment and comparing it
to modern technology that may be "modern today and outmoded tomorrow."); id.
(statement of Del. Douglas Gray) ("I believe the authority for the recall is all that is
necessary, and the legislature can take care of this affair. I just feel that putting through
another recall [amendment] will take another three or four days in this delegation.").
32 Id. at 1237.
33 Id.
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34
merits of the case." Delegate James Hurley disagreed: "I think it is fair to leave it to
the legislature to prescribe the grounds under which a recall petition should be circulated
so as to prevent circulation of recall petitions for petty grounds in local jurisdictions by
some recalcitrant officer who was not elected, which I have seen happen in my own
35
community."
The convention ultimately adopted the language now in Article XI, section
8, leaving it to the legislature to prescribe the grounds and procedures for recall.36 And
despite the delegates' "spirited debate" on the subject,37 no consensus emerged about
what the grounds for recall should be. Without substantive guidance on this issue from
theConstitution's framers, theAlaskalegislaturein 1960 firstprescribed thegrounds and
procedures for recall of state officials now codified in AS 15.46, and in 1972 it first
prescribed the grounds and procedures for recall of local officials now codified in
AS 29.26.38
B. The Statutory Procedures For Recall Of Elected Officials
In the various states with a right of recall, the people's power spans a
spectrum. "At one end of the spectrum is the view that recall is 'special, extraordinary,
and unusual,' and produces the 'harsh' result of removing an official prior to the
34 Id. ; Meiners v. Bering Strait Sch. Dist., 687 P.2d 287, 295 (Alaska 1984).
35 2 PACC 1238-39 (Jan. 5, 1956); Meiners, 687 P.2d at 295.
36 2 PACC 1239-40 (Jan. 5, 1956); Meiners, 687 P.2d at 295.
37 Meiners, 687 P.2d at 295; see generally 2 PACC 1207-16, 1221-40 (Jan. 4
& 5, 1956).
38 See ch. 83, §§ 9.71-.96, SLA 1960 (establishing grounds and procedures
for recall); ch. 118, § 2, SLA 1972. The local official recall statutes, originally codified
at AS 29.28, were later renumbered to AS 29.26. See ch. 74, § 9, SLA 1985.
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39
expiration of the fixed term to which he was elected." Under this view, statutory
grounds are construed narrowly in favor of the officeholder, and any violation of the
40 "At the other end of the
prescribed procedures may invalidate the recall effort.
spectrum" is the view that recall is essentially a political process and "all doubts are
resolved in favor of placing the recall question before the voters."41 Under this view,
disagreement with the officeholder's position on policy questions is a sufficient ground
for recall.42
Alaska "appears to follow a middle ground between these two positions."43
The statutes effectuating the constitutional right at the state level, AS 15.45.470-.720, set
out the grounds and procedures for recalling the governor, the lieutenant governor, and
members of the state legislature. They adopt a for-cause recall and list the four
acceptable grounds as (1) lack of fitness, (2) incompetence, (3) neglect of duties, and (4)
corruption.44
39 Meiners , 687 P.2d at 294 (quoting State ex rel. Palmer v. Hart, 655 P.2d
965, 967 (Mont. 1982)).
40 Id. (citing Kotar v. Zupan, 658 P.2d 1095 (Mont. 1983)).
41 Id.
42 Id.
43 Id.
44 AS 15.45.510. Nineteen states and the District of Columbia permit recall
of state officials; seven of these states, including Alaska, require cause to initiate a recall.
Recall of State Officials, NAT 'L CONF. ST. LEGISLATURES (July 8, 2019),
http://www.ncsl.org/legislatures-elections/elections/recall-of-state-officials.aspx. See
Minn. Const. art. VIII, § 6 (limiting recall to "serious malfeasance or nonfeasance during
the term of office in the performance of the duties of the office or conviction during the
term of office of a serious crime"); R.I. Const. art. IV, § 1 (limiting recall to instances
(continued...)
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The recall process begins when recall proponents file an application with
45
the director of the Division of Elections. The application must include "the grounds for
recall described in particular in not more than 200 words," along with the signatures of
enough voters to equal "10 percent of those who voted in the preceding general
election."46
"The director shall review the application and shall either certify it or notify
47
the recall committee of the grounds of refusal." Grounds of refusal identified by statute
44 (...continued)
when official has been "indicted or informed against for a felony, convicted of a
misdemeanor, or against whom a finding of probable cause of violation of the code of
ethics has been made by the ethics commission"); Wash. Const. art. I, § 33 (limiting
recall to comission of "some act or acts of malfeasance or misfeasance while in office,
or . . . violat[ion of] oath of office"); G a. Code Ann. §§ 21-4-3(7), 21.4-4(c) (limiting
recall to "acts of malfeasance or misconduct while in office"; violations of "oath of
office"; "failure to perform duties prescribed by law"; or "willful[] misuse[],
conver[sion], or misappropriat[ion], without authority, public property or public funds
entrusted to or associated with the elective office to which the official has been elected
or appointed"); Kan. Stat. § 25-4302 (limiting recall to "conviction of a felony,
misconduct in office or failure to perform duties prescribed by law"); Mont. Code Ann.
2-16-603 (2019) (limiting recall to "[p]hysical or mental lack of fitness, incompetence,
violation of the oath of office, official misconduct, or conviction of" certain felony
offenses); Va. Code Ann. § 24.2-233 (limiting recall to "neglect of duty, misuse of
office, or incompetence in the performance of duties when that neglect of duty, misuse
of office, or incompetence in the performance of duties has a material adverse effect
upon the conduct of the office," or "[u]pon conviction of" certain crimes). Virginia's
process is initiated by citizen petitions but involves a recall trial rather than an election.
Va. Code Ann. § 24.2-235; Recall of State Officials, NAT 'L CONF. ST. LEGISLATURES.
At least 30 states allow recall elections in local jurisdictions. Recall of State Officials,
NAT 'L CONF. ST. LEGISLATURES.
45 AS 15.45.480.
46 AS 15.45.500(2) and (3).
47 AS 15.45.540.
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48
include that "the application is not substantially in the required form"; the official was
49 50
very recently elected or is soon to leave office;
the official "is not subject to recall";
51 If the application is accepted, the director
and there are too few qualified signers.
prepares enough petitions "to allow full circulation throughout the state" (in the case of
a statewide election),52 and the recall proponents must gather signatures on the petitions
equal in number to "25 percent of those who voted in the preceding general election."53
If the proponents gather enough signatures in this second round and the
completed petitions are properly filed, the director must call a special election.54 The
ballot asks the yes or no question, "Shall (name of official) be recalled from the office
of . . . ?"55 The targeted official may file a "statement of not more than 200 words . . . in
justification of the official's conduct in office,"56 and copies of the statements for and
57
against recall must appear "in a conspicuous place" at each polling place.
48 AS 15.45.550(1).
49 AS 15.45.550(2) (providing that certification must be denied if the
application is filed within first 120 days or last 180 days of official's term of office).
50 AS 15.45.550(3).
51 AS 15.45.550(4).
52 AS 15.45.560.
53 AS 15.45.610.
54 AS 15.45.650.
55 AS 15.45.660.
56 AS 15.45.680.
57 Id.
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IV. STANDARD OF REVIEW
58
"We review grants of summary judgment de novo."
We apply our
independent judgment to questions of law, including questions of constitutional
59
interpretation. When interpreting Alaska's recall statutes, we exercise our independent
judgment and adopt "the rule of law which is most persuasive in light of precedent,
60
policy and reason."
V. DISCUSSION
A. Our Case Law Interpreting The Recall Statutes
We have interpreted Alaska's recall statutes twice before, though not the
specific statutes at issue here. Because this case involves a state official, it is governed
by AS 15.45.470-.720, but our two reported opinions were decided under AS 29.26.240-
61
The separate statutory schemes arise from the
360, governing recall of local officials.
same constitutional background, however, and there are significant statutory parallels
that help shape our analysis here. The three prescribed grounds for recall under the
local-official recall statutes are "misconduct in office, incompetence, or failure to
62
perform prescribed duties." And the local-official recall statutes have a particularity
58 Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 516 (Alaska 2014).
59 Wielechowski v. State, 403 P.3d 1141, 1146 (Alaska 2017).
60 von Stauffenberg v. Comm. for Honest & Ethical Sch. Bd., 903 P.2d 1055,
1059 n.9 (Alaska 1995) (quoting Zsupnik v. State, 789 P.2d 357, 359 (Alaska 1990)).
61 See Meiners v. Bering Strait Sch. Dist., 687 P.2d 287, 291 (Alaska 1984);
von Stauffenberg, 903 P.2d at 1057-58. We note that Meiners was originally decided
under AS 29.28, which was later renumbered in 1985. See supra note 38.
62 AS 29.26.250.
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63
requirement similar to that of AS 15.45.500(2), though it has evolved slightly.
Originally the statute required that a recall petition contain "a statement of the grounds
of the recall stated with particularity as to specific instances"; the current version in the
local-official recall statutes requires "a statement in 200 words or less of the grounds for
64
recall stated with particularity."
In 1984, in Meiners v. Bering Strait School District, we reversed a superior
court's order enjoining a recall election directed at several members of a regional school
board.65 The injunction was based on a finding that there were not enough signers, but
the superior court also "intimated" that certain allegations in the recall petition, "while
sufficiently specific, did not come within the statutory grounds for recall."66
We described the constitutional background of the recall process, then
observed that holding recall petitions to high standards of technical compliance could
hinder the exercise of this constitutional right by citizens of limited means and
67 We emphasized "the need to avoid wrapping the recall process in such a
resources.
tight legal straitjacket that a legally sufficient recall petition could be prepared only by
63 Compare former AS 29.28.150(a)(3) (1984) ("stated with particularity"),
with AS 15.45.500(2) ("described in particular").
64 AS 29.26.260(a)(3).
65 687 P.2d at 290. Recall of regional school board members is provided for
in AS 14.08.081, which incorporates the statutes governing recall of city and borough
officials, former AS 29.28.130-.250 (1984). Id. at 290-91.
66 Id. at 293.
67 Id. at 295-96 (stating that if we interpret "statutes in so strict a manner" that
a recall proponent must seek the advice of a lawyer in order to have a compliant petition,
the effect "would be virtually to negate the recall process" for voters in rural Alaska).
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68
an attorney who is a specialist in election law matters." We held that the recall statutes
should therefore be "liberally construed so that 'the people [are] permitted to vote and
express their will,' " and that "[t]he purposes of recall are . . . not well served if artificial
technical hurdles are unnecessarily created by the judiciary as parts of the process
prescribed by statute." 69
The first paragraph of the recall application at issue in Meiners alleged that
the school board members failed "to performthe[ir]prescribed duties" by failing "to hold
the superintendent responsible" for misappropriation of money.70 The school district
argued that a regional school board is legally required only to "employ" a
superintendent;71 "[t]o 'control' the superintendent" was "merely a discretionary
function" and the board's failure to do it therefore could not be a failure to perform
72 We rejected that argument, holding that "[i]mplicit in the board's
prescribed duties.
duty to 'employ' a superintendent" are the duties to evaluate the superintendent's
73
performance and replace him when necessary.
The recall application's second paragraph alleged that the school board
members failed to perform prescribed duties by failing "to provide full and open
68 Id. at 301.
69 Id. at 296 (first alteration in original) (citation omitted) (quoting Boucher
v. Engstrom, 528 P.2d 456, 462 (Alaska 1974)).
70 Id. at 291.
71 Id. at 299-300.
72 Id. at 300.
73 Id.
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74
communication between themselves and the voters of the district." The application
listed particular instances of conduct which it alleged violated the state public records
75 We concluded that because public records laws were laws
and public meetings laws.
of general application, the allegation that the board failed to follow them sufficiently
alleged the failure to perform prescribed duties.76 We rejected the argument that the
petition misstated the law, concluding that the "proper forum" for that argument was the
targeted officials' rebuttal statement.77
We emphasized in Meiners "that it is [the role] of the voters . . . to assess
the truth or falsity of the allegations in the petition," and that in holding that the petition
sufficiently alleged failure to perform prescribed duties, we were not deciding that the
allegations were true.78 We explained:
We are in a position similar to a court ruling on a motion to
dismiss a complaint for failure to state a claim. For these
purposes, we must take the allegations as true, without
thereby prejudging the trier of fact's role to determine
whether or not they are true.[79]
Applying this standard, we held that paragraph two also satisfied the particularity
74 Id. at 301.
75 Id.
76 Id.
77 Id. ("If the petition alleges violation of totally non-existent laws, then it
would not allege failure to perform prescribed duties. But that is not the case here.
Where the petition merely characterizes the law in a way different than the official (or
his or her attorney) would prefer, he or she has an opportunity to put his or her rebuttal
before the voters, alongside the charges contained in the petition.").
78 Id. at 300 n.18.
79 Id.
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80
requirement. We explained that "[t]he purpose of the requirement of particularity is to
give the officeholder a fair opportunity to defend his conduct in a rebuttal limited to 200
81
words." The recall petition was not impermissibly vague, because it alleged violations
82
of certain laws and the meaning of those laws was not unclear.
Eleven years later we decided von Stauffenberg v. Committee for Honest
83
& Ethical School Board. A borough school board went into executive session to
discuss the retention of an embattled school principal; back in public session, the board
84
announced that he was retained. A group of parents and other voters initiated a recall
85
effort against members of the board. Their application stated the grounds for recall as
misconduct in office and failure to perform prescribed duties based on the "improper,
86
closed door executive session, in violation of Alaska law." The borough clerk rejected
the petition, determining that it "was 'insufficient for failure to allege, with particularity,
87
facts that constitute any of the three grounds for recall.' " The superior court reversed,
88
but we agreed with the borough clerk's determination that the petition was insufficient.
80 Id. at 302.
81 Id.
82 Id.
83 903 P.2d 1055 (Alaska 1995).
84 Id. at 1056-57.
85 Id. at 1057.
86 Id.
87 Id. (quoting borough clerk's determination).
88 Id. at 1057, 1060-61.
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We repeated our standard of review from Meiners : In reviewing the legal
sufficiency of allegations in recall petitions, we are "in a position similar to a court ruling
on a motion to dismiss a complaint for failure to state a claim" and must therefore take
89 We must then "determine whether such facts constitute a prima
the allegations as true.
facie showing of" a prescribed ground for recall.90
We concluded in von Stauffenberg that they did not, because the school
board members did not violate Alaska law.91 Although government meetings are
required to be open, an exception applies when the subject of discussion tends to
prejudice the reputation and character of any person, as was the case with the principal's
retention.92 We explained, "[W]here recall is required to be for cause, elected officials
cannot be recalled for legally exercising the discretion granted to them by law."93 The
school board members were properly exercising the discretion granted to them by law
when they went into an executive session to consider whether to retain the principal.94
We held that the recall application lacked sufficient particularity because"the allegations
fail[ed] to state why entering into the executive session [violated] Alaska law."95
89 Id. at 1059 (citing Meiners v. Bering Strait Sch. Dist., 687 P.2d 287, 300-01
n.18 (Alaska 1984)).
90 Id. at 1059-60.
91 Id. at 1060.
92 Id.
93 Id.
94 Id.
95 Id.
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B. The Legal Sufficiency Requirement
It is a relatively straightforward ministerial task to determine whether a
recall petition satisfies certain statutory requirements, such as whether it has "the name
and office of the person to be recalled," the requisite number of signatures, and the
96
identity of the recall committee.
More difficult is determining whether the petition is
legally sufficient - that is, whether it states one of the four listed grounds for
97 98
recall - and, if so, whether the grounds are "described in particular." We address
legal sufficiency first and then the particularity requirement.
"In reviewing the legal sufficiency of allegations in recall petitions, this
court is 'in a position similar to a court ruling on a motion to dismiss a complaint for
99
failure to state a claim . . . [and] we must [therefore] take the allegations as true."
Taken as true, the allegations must make a prima facie showing of at least one of the
statutorily prescribed grounds for recall: lack of fitness, incompetence, neglect of duties,
or corruption.100 If the ground rests on an alleged violation of law, it must allege conduct
that is in fact unlawful. The ground is not legally sufficient if it "alleges violation of
totally non-existent laws"101 or if it is based on the official's lawful exercise of
96 AS 15.45.500(1), (3), (4).
97 AS 15.45.510.
98 AS 15.45.500(2).
99 von Stauffenberg, 903 P.2d at 1059 (alterations in original) (quoting
Meiners v. Bering Strait Sch. Dist., 687 P.2d 287, 300-01 n.18 (Alaska 1984)).
100 AS 15.45.510.
101 See Meiners, 687 P.2d at 301.
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102
discretion. However, "a petition which merely characterizes the law in a way different
than the targeted official would prefer is legally sufficient"; "the 'rebuttal statement is
103
the proper forum in which the official may defend against the charges.' "
C. The Particularity Requirement
The particularity requirement is found in AS 15.45.500(2), which requires
that a recall application include "the grounds for recall described in particular in not
more than 200 words." (Emphasis added.) We concluded in Meiners that "[t]he purpose
of the requirement of particularity is to give the officeholder a fair opportunity to defend
his conduct in a rebuttal limited to 200 words."104 The particularity requirement thus
serves a function similar to the complaint in a civil case. The standard we apply in that
105 requiring only "(1) a short and
context is "notice pleading," a "fairly lenient" standard
plain statement of the claim showing that the pleader is entitled to relief, and (2) a
demand for judgment for the relief the pleader seeks."106 "We have not construed this
rule to require details of evidence that a claimant will offer to establish a claim; to the
contrary, we have emphasized that the rule is satisfied by a brief statement that 'give[s]
the defendant fair notice of the claim and the grounds upon which it rests.' "107
102 von Stauffenberg , 903 P.2d at 1060.
103
Id. at 1060 n.13 (quoting Meiners, 687 P.2d at 301).
104
Id. at 1060 (quoting Meiners, 687 P.2d at 302).
105 Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 181 (Alaska 2009).
106 Id. (quoting Alaska R. Civ. P. 8(a)).
107
ValdezFisheriesDev. Ass'n v.Alyeska Pipeline Serv. Co., 45 P.3d 657, 673
(Alaska 2002) (alteration in original) (quoting Sykes v. Melba Creek Mining, Inc. , 952
P.2d 1164, 1168 n.4 (Alaska 1998)).
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When applying the notice pleading standard to civil complaints, we
construe them liberally to ensure access to the courts for everyone regardless of whether
108 We have expressed similar concerns about ensuring citizen
they have a lawyer's help.
access to the constitutional recall process, emphasizing in Meiners the importance of
avoiding unnecessary "artificial technical hurdles" that can be overcome only with "the
detailed advice of a lawyer"; we therefore "liberally constru[e] [the recall statutes] so that
'the people [are] permitted to vote and express their will.' "109 This is in line with the
legislature's own direction, in AS 15.45.550(1), that the application be "substantially in
the required form" (emphasis added), and with the legislature's 200-word limit in
AS 15.45.500(2), prioritizing concision over a thorough description of the petition's
factual and legal basis.110
108 See Sykes, 952 P.2d at 1168 n.4.
109 Meiners, 687 P.2d at 296 (third alteration in original) (quoting Boucher v.
Engstrom, 528 P.2d 456, 462 (Alaska 1974)). When Meiners was decided there was no
word limit for the statement of grounds, only for the rebuttal statement. See former
AS 29.29.150(a)(3) (1984) (requiring "a statement of the grounds of the recall stated
with particularity as to specific instances" but containing no word limit). We note that
the statement of grounds at issue in Meiners contained three substantive paragraphs, was
over 450 words long, and was still challenged on particularity grounds. Meiners, 687
P.2d at 291-92, 302.
110 The word limit itself must be read in light of the substantial compliance test
of AS 15.45.550(1). Cf. Silver Bow Constr. v. State, Dep't of Admin., Div. of Gen.
Servs., 330 P.3d 922, 923 (Alaska 2014) (discussing agency discretion to accept
overlength bid in competitive bidding process). A word limit may be a significant
burden on the exercise of the constitutional recall right, especially if the petition makes
multiple allegations or arises from a complicated legal or factual background. The 200-
word limit is not challenged on this appeal, but we note that statutory provisions
governing the mechanics of elections, if challenged on constitutional grounds, "should
be analyzed to determine whether they impermissibly burden the right to vote."
(continued...)
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The State argues that the notice pleading standard is inappropriate because
it does not ensure that the Division and the courts are able to review the statement for
statutory compliance and because it does not ensure that voters will be able to understand
the grounds for recall. The State argues that the statement of grounds must be "free-
standing and comprehensive." According to the State, this does not mean the statement
must include "every relevant fact," but it "must be clear enough to identify specifically
what the official has done or not done so that the Division and courts can determine
whether it meets the statutory criteria, the official can meaningfully respond in 200
words, and voters can understand the basis of the recall."
We certainly agree that the statement of grounds must be "clear enough"
to serve its statutory purpose. The recall application should frame the issue such that the
Division and the courts can determine its legal sufficiency, the targeted official has a fair
opportunity to respond, and the voters can understand the basis for the recall effort. But
in deciding whether these goals have been met, we must consider the 200-word limit,111
112 and the need to construe statutory requirements in favor of
the substantiality test,
preserving the exercise of constitutional rights.113
110 (...continued)
Sonneman v. State, 969 P.2d 632, 637 (Alaska 1998) (citing McIntyre v. Ohio Elections
Comm'n, 514 U.S. 334, 345 (1995)). "Severe" restrictions on the right to vote are
subject to strict scrutiny and "must be 'narrowly drawn to advance a state interest of
compelling importance.' " Id. at 638 (quoting O'Callaghan v. State, 914 P.2d 1250,
1254 (Alaska 1996)). On the other hand, "reasonable, nondiscriminatory restrictions"
may be justified by the state's important regulatory interests. Id. at 638-39.
111 AS 15.45.500(1).
112 AS 15.45.550(1).
113 See Meiners, 687 P.2d at 296.
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The State also argues that to satisfy the particularity requirement the
"statement of grounds must explain how the alleged conduct meets one or more grounds
for recall." Recall Dunleavy's application alleged "Neglect of Duties, Incompetence,
and/or Lack of Fitness, for the following actions," listing the four distinct allegations of
objectionable conduct. Although the "and/or" construction "has been criticized in many
114 it is commonly understood to mean "the one or the other or both."115
legal opinions,"
The application thus leaves it to the individual voter to decide whether neglect of duties,
incompetence, lack of fitness, or some combination of the three is demonstrated by each
of the four allegations. And voters may reach different conclusions based on their
individual assessments of the charges: for example, one voter may decide that a failure
to appoint a judge as required by law demonstrates incompetence, another that it
demonstrates two or three of the alleged grounds, and another that it demonstrates none
of them. Alaska Statutes 15.45.500-.510 do not require that the petitioners map out all
possible routes for voters' decision-making, and we will not read such a requirement into
the statutes, especially given the substantiality test and the constraints of the 200-word
limit. An allegation that lacks any logical connection to one of the statutory grounds for
recall will be found legally insufficient. If a logical connection can be made, we leave
it to the voters to decide whether to make it.
114 Batchelor v. Madison Park Corp. , 172 P.2d 268, 277-78 (Wash. 1946); see
And/or, BRIAN A. G ARNER, D ICTIONARY OF LEGAL USAGE (3d ed. 2011) ("A legal and
business expression dating fromthe mid-19th century, *and/or has been vilified for most
of its life - and rightly so.").
115 Local Div. 589, Amalgamated Transit Union v. Massachusetts, 666 F.2d
618, 627 (1st Cir. 1981); see Batchelor, 172 P.2d at 278 (opining that despite potential
ambiguity of deed's use of "and/or," "[i]t seems perfectly clear that the lots were deeded
for municipal park and playground purposes, or for either of those purposes"); GARNER,
supra note 114 ("*And/or , though undeniably clumsy, does have a specific meaning
(x *and / or y = x or y or both.").
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D. Defining The Grounds For Recall
The legislature established by statute the four potential grounds for
recall - "(1) lack of fitness, (2) incompetence, (3) neglect of duties, or (4)
116
corruption" - but did not define them further. We observed in Meiners that the
parties' dispute was due largely to ambiguities in the law and that "more carefully drawn
statutes"could decrease theneedfor judicialinvolvement, explaining that "[t]hepolitical
nature of the recall makes the legislative process, rather than judicial statutory
interpretation, the preferable means of striking the balances necessary to give effect to
117
the Constitutional command that elected officers shall be subject to recall." The
118
legislature did not respond with any changes to the recall statutes, but we must
nonetheless attempt to discern its intent from the words it used, "with due regard for the
119
"In the absence of a
meaning that the statutory language conveys to others."
[statutory] definition, we construe statutory terms according to their common meaning[;]
120
[d]ictionaries 'provide a useful starting point' for this exercise." And although the
116 AS 15.45.510. The fourth ground, corruption, is not implicated in this case.
117 Meiners, 687 P.2d at 296.
118 We do not disagree with the dissent's exhortation that the legislature
reconsider the statutory recall framework and allowable statutory grounds for recall.
119 Cora G. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
461 P.3d 1265, 1277 (Alaska 2020) (quoting Heller v. State, Dep't of Revenue, 314 P.3d
69, 74 (Alaska 2013)).
120 Alaska Pub. Def. Agency v. Superior Court, 450 P.3d 246, 253 (Alaska
2019) (alterations in original) (quoting Alaska Ass'n of Naturopathic Physicians v. State,
Dep't of Commerce, 414 P.3d 630, 635 (Alaska 2018)); see also AS 01.10.040(a)
("Words and phrases shall be construed according to the rules of grammar and according
to their common and approved usage."); Wells v. State, 102 P.3d 972, 975 (Alaska App.
(continued...)
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definitions of the relevant statutory terms have not changed significantly over the past
70 years, we take into account the sources available to the constitution's framers and to
121
the legislators who later enacted the statutes intended to further the framers' intent.
1. Lack of fitness
"Fitness" is commonly defined as the condition of being "suitable" or
"appropriate."122 The superior court defined lack of fitness as "unsuitability for office
demonstrated by specific facts related to the recall target's conduct in office." The court
drew this definition from a 2004 recall case, Valley Residents for a Citizen Legislature
120 (...continued)
2004) ("When the legislature uses a word or phrase but does not define it, a court should
normally assume that the legislature intended the word or phrase to have its common,
ordinary meaning.").
121 See, e.g., State v. Winkler, 473 P.3d 796, 800 (Idaho 2020) ("[T]o discern
the drafters' intent, we look to other sources close in time to the adoption of Idaho's
constitution."); In re Burnett Estate, 834 N.W.2d 93, 98 (Mich. App. 2013) ("Words
should be given their common and most obvious meaning, and consideration of
dictionary definitions used at the time of passage for undefined terms can be
appropriate."); McKenna v. Williams, 874 A.2d 217, 243 n.19 (R.I. 2005) (looking to
"dictionary relevant to the time of the adoption of" state constitutional provision to
determine contemporary understanding of word 'election' ").
122 Fit, BLACK 'S LAW DICTIONARY (4th ed. 1951) ("Suitable or appropriate.
Conformable to a duty. Adapted to, designed, prepared." (citation omitted)); Fit,
BALLENTINE 'S LAW DICTIONARY (3d ed. 1969) ("Adjective: Proper; suitable; befitting;
adapted to."); Fitness, id. ("The condition of being fit."); Fit, THE NEW CENTURY
DICTIONARY (1946) ("Well adapted or suited by nature or character, as for a purpose,
use, or occasion[;] . . . also, suitable by reason of qualifications, abilities, etc., as for a
position, office, or function; qualified or competence."); Fit, T HE AMERICAN HERITAGE
DICTIONARY (2d ed. 1985) ("To be appropriate or suitable to."); Fit, WEBSTER 'S NEW
WORLD DICTIONARY (2d ed. 1980) ("1. [T]o be suitable or adapted to; be in accord
with.").
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123
v. State, Division of Elections, in which the parties agreed on the appropriateness of
the definition used by the superior court.
We agree that "unsuitability for office" is the proper definition, though we
do not believe that the "specific facts" demonstrating unsuitability must be "related to
the recall target's conduct in office." For example, personal misconduct such as
domestic violence or tax fraud may be unrelated to the official's "conduct in office" and
yet persuade a majority of voters that the official should be recalled. It is up to the voters
to decide whether the official's conduct demonstrates an unfitness of the sort that is
incompatible with the office he or she holds.
The State argues that "unsuitability for office" "is just as vague and
amorphous as the phrase it purportedly defines," thus allowing "the kind of purely
political, no-cause-required recall that the constitutional delegates expressly rejected."
The State argues, therefore, that "fitness" should be limited to officials' physical and
mental capacity to perform their official duties. But such a limited definition does not
comport with the common meanings of "fit" and "fitness," which encompass
124 And defining fitness in a way that excludes
appropriateness and suitability generally.
moral fitness is inconsistent with the purposes of recall; the people's interest in removing
a public official from office may be greatest when the official shows deficiencies of
character.
123 No. 3AN-04-06827 CI, Order Regarding Pending Motions (Alaska Super.,
Aug. 24, 2004) (finding that petition for recall of state senator, as amended by Division,
was legally and factually sufficient); see also Citizens for Ethical Gov't v. State, Div. of
Elections, No. 3AN-05-12133 CI, Transcript of Proceedings (Alaska Super., Jan. 4,
2006) (adopting definition of "lack of fitness" used in Valley Residents and finding that
recall statement of grounds was factually and legally insufficient), appeal dismissed as
moot, Supreme Court No. S-12208 (Alaska June 20, 2006).
124 See supra note 122.
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We conclude, in accordance with the words' common and ordinary
meaning, that "lack of fitness" is appropriately defined as "unsuitability for office."
2. Incompetence
Variousdictionaries define"incompetence"(or "incompetency") in similar
125
terms: "Lack of ability, legal qualification, or fitness to discharge the required duty."
One law dictionary defines incompetency of a public officer more precisely as "the
absence of a physical, moral, or intellectual quality, incapacitating one to perform the
duties of his office, characterized by gross neglect of duty or gross carelessness in the
126
performance of duty, lack of judgment, and want of sound discretion."
Apparent from these definitions is the difficulty of defining the statutory
terms without some overlap among them, such as when "incompetency" can mean "lack
of fitness" or "neglect of duty." The State points to this difficulty as a reason why the
grounds for recall should be narrowly defined. But although "[w]e assume that words
127 we are also required to construe them
added to a statute are not mere surplusage,"
125 Incompetence, B LACK 'S LAW DICTIONARY (4th ed. 1951); Incompetency,
BALLENTINE 'S LAW DICTIONARY (3d ed. 1969) ("Inefficiency; a lack of some requisite
ability. Inadequacy or insufficiency, either physical or mental . . . . Want of
qualifications or eligibility." (citations omitted)); Competence, competency, T HE NEW
CENTURY DICTIONARY (1946) ("The quality of being competent; adequacy; due
qualification or capacity."); Competent, id. ("Fitting, suitable, or sufficient for the
purpose; adequate; properly qualified; having legal capacity or qualification.");
Incompetent, id. ("Not competent; lacking qualification or ability; incapable; not legally
qualified."); Incompetent, W EBSTER 'S NEW WORLD DICTIONARY (2d ed. 1980) (adj.: "1.
without adequate ability, knowledge, fitness, etc.; failing to meet requirements;
incapable; unskillful").
126 Incompetency, BALLENTINE 'S LAW DICTIONARY (3d ed. 1969).
127 Kodiak Island Borough v. Roe, 63 P.3d 1009, 1014 n.16 (Alaska 2003).
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128
"according to their common and approved usage," recognizing that common usage
sometimes involves redundancy and imprecision. Andthe legislature mayhaveintended
129 "As a result, 'there are instances in
some overlap in order to ensure broad coverage.
which a court may validly "prefer ordinary meaning to an unusual meaning that will
avoid surplusage." ' Certainly, a court should not give a word an entirely fanciful
meaning to avoid a minor redundancy."130
The superior court defined "incompetence" as "lack of [the] ability to
perform the official's required duties," relying on the 1993 superior court decision in
Coghill v. Rollins.131 The State does not take issue with the definition directly, but it does
take issue with the superior court's conclusion that the definition may cover an official's
single mistake. The State argues that "people make mistakes all the time" but "[t]hat
does not make themincompetent under any meaningful understanding of the word." The
State proposes that for recall purposes incompetence must be alleged in one of two ways:
128 AS 01.10.040.
129 See Nat'l Ass'n of Clean Water Agencies v. EPA, 734 F.3d 1115, 1126
(D.C. Cir. 2013) ("In some cases, redundancy may reflect the broad purpose of a
congressional statute."); Pawlowski v. Am. Family Mut. Ins. Co., 777 N.W.2d 67, 72
(Wis. 2009) ("The use of different words joined by the disjunctive connector 'or'
normally broadens the coverage of the statute to reach distinct, although potentially
overlapping sets.").
130 Taylor v. Grubbs, 930 F.3d 611, 624 (4th Cir. 2019) (quoting Oak Grove
Res., LLC v. Director, OWCP, 920 F.3d 1283, 1291 (11th Cir. 2019) (quoting ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW § 26, at 176 (2012))).
131 No. 4FA-92-1728 CI, Memorandum Decision (Alaska Super., Sept. 14,
1993) (finding allegation of incompetence legally sufficient where statement of grounds
asserted that lieutenant governor admitted his unfamiliarity with election laws he was
charged with administering), appeal dismissed as moot, Coghill v. Rollins, Supreme
Court No. S-6108 (Alaska Apr. 12, 1995).
-29- 7542
----------------------- Page 30-----------------------
"First, by an allegation that an official does not have basic knowledge or qualifications
for the duties of the position," or second, by results - not just alleged mistakes but also
an explanation "why . . . the official cannot perform the required duties."
Again, given the constitutional source of the recall right, we are wary of
defining these statutory terms in ways that are not required by their common meaning.
The more interpretive gloss we judicially place on the terms, the closer we come to the
situation we warned of in Meiners : "wrapping the recall process in such a tight legal
straitjacket that a legally sufficient recall petition could be prepared only by an attorney
132 In the absence of legislative specificity,
who is a specialist in election law matters."
we agree with the superior court's definition - "lack of ability to perform the official's
required duties" - as reflecting the statutory terms' common meaning.
3. Neglect of duties
"Neglect of duty" is defined as "[t]he omission of one to perform a duty
resting upon him" and "[t]he neglect or failure on the part of a public officer to do and
perform a duty or duties laid on him as such by virtue of his office or required of him by
law."133
The superior court defined "neglect of duty" as "the nonperformance of a duty
132 Meiners v. Bering Strait Sch. Dist. , 687 P.2d 287, 301 (Alaska 1984).
133 Neglect of duty, BALLENTINE 'S LAW DICTIONARY (3d ed. 1969); see also
Neglect, B LACK 'S LAW DICTIONARY (4th ed. 1951) ("May mean to omit, fail, or forbear
to do a thing that can be done, or that is required to be done, but it may also import an
absence of care or attention in the doing or omission of a given act. And it may mean
a designed refusal or unwillingness to perform one's duty." (citation omitted)); Neglect,
BALLENTINE 'S LAW DICTIONARY (3d ed. 1969) ("Verb: To omit to do or perform some
work, act, or duty, required in one's business or occupation, or required as a legal
obligation, such as that of making a payment. Noun: Omission to act or perform. The
word does not generally imply carelessness or imprudence, but simply an omission to do
or perform some work, duty or act."); Neglect, T HE NEW CENTURY DICTIONARY (1946)
("[F]ail to carry out or perform."); Neglect, T HE AMERICAN HERITAGE DICTIONARY (2d
(continued...)
-30- 7542
----------------------- Page 31-----------------------
of office established by applicable law." The court adopted this definition from Valley
134
Residents, a case in which the parties agreed on the definition of the term.
In Meiners
we discussed the analogous language fromTitle 29, holding that the relevant phrase from
135 - included
the local-official recall statutes - "failure to perform prescribed duties"
not just the specific duties imposed by statute on school board members but also "the
duty to comply with statutes of general application relating to education."136 We
explained that if the board undertook to exercise a power it was not required to exercise,
"it must do so in accordance with the law, even though it had no obligation to exercise
that particular power at all."137 And we held that the board's "exercise of the power in
an unlawful manner could constitute a failure to perform a prescribed duty, one
prescribed by the statute of general application."138 The definition adopted by the
133 (...continued)
ed. 1985) (tr.v.: "1. To ignore or pay not attention to; disregard. 2. To fail to care for or
give proper attention to. 3. To fail to do or carry out, as through carelessness or
oversight. n. 1. The act or an instance of neglecting something. 2. The state of being
EBSTER 'S NEW WORLD DICTIONARY (2d
neglected. 3. Habitual lack of care."); Neglect, W
ed. 1980) (verb: "1. to ignore or disregard . . . 2. to fail to care for or attend to sufficiently
or properly; slight . . . 3. to fail to carry out (an expected or required action) through
carelessness or by intention; leave undone;" noun: "1. the action of neglecting 2. lack of
sufficient or proper care; negligence; disregard 3. the state of being neglected.").
134 Valley Residents for a Citizen Legislature v. State, Div. of Elections,
No. 3AN-04-06827 CI, Order Regarding Pending Motions (Alaska Super., Aug. 24,
2004).
135 Former AS 29.28.140 (1984).
136 Meiners, 687 P.2d at 300.
137 Id.
138 Id.
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----------------------- Page 32-----------------------
superior court in this case is consistent with this explanation and with the common
meaning of the words the legislature used.
The State again proposes that we define "neglect of duties" more narrowly
than the superior court did, citing the need "to avoid de facto political recall and remain
consistent with this Court's previous statements about recall in Alaska." The State
proposes that we require "either an allegation of the significance of the duty or an
allegation that the omission had a tangible consequence to justify subjecting the official
to a recall election." Again, however, we default to the common meaning of the phrase
in the absence of legislative direction. If the recall application alleges both the existence
of a duty and the official's failure to perform it, we will leave it to the voters to decide
whether the duty is significant and whether the failure to perform it matters.
E. TheAllegationsInTheRecall Committee's Statement Of Grounds Are
Legally Sufficient And Satisfy The Particularity Requirement.
We analyze in turn each of the four allegations in Recall Dunleavy's recall
application.
1. Paragraph 1: "Governor Dunleavy violated Alaska law by
refusing to appoint a judge to the Palmer Superior Court within
45 days of receiving nominations."
The recall application's first paragraph alleges that the governor violated
Alaska law by refusing to appoint a judge to a specific court location within the time
prescribed by statute. The applicable law is AS 22.10.100, which provides, in pertinent
part, that "[t]he governor shall fill a vacancy or appoint a successor to fill an impending
vacancy in the office of superior court judge within 45 days after receiving nominations
139
from the judicial council." The governor's statutory duty is mandatory;
the State does
139 See Petitioners for Incorporation of City & Borough of Yakutat v. Local
Boundary Comm'n , 900 P.2d 721, 724 (Alaska 1995) ("Unless the context otherwise
(continued...)
-32- 7542
----------------------- Page 33-----------------------
not argue otherwise. Accepting as true the factual allegation - that the governor did
indeed "refus[e] to appoint a judge" within the time allowed - we conclude that this
paragraph makes a legally sufficient showing of lack of fitness, incompetence, or neglect
of duty.
Use of the word "refusal" suggests more than neglect; it suggests a
140 An allegation that an official has
knowledge of the law and intent to disregard it.
refused to follow the law therefore makes a prima facie showing of lack of fitness; this
is especially true for the governor, who is constitutionally charged with "the faithful
execution of the laws."141
As the superior court further analyzed this allegation, voters could believe
that it showed the governor was "incompetent" because, while not intending to disregard
the law, "he did not understand his duty to conduct his due diligence on the candidates
or process before the expiration of the statutory deadlines." Alternatively, voters who
could not or did not care to assess the governor's intent or level of understanding could
139 (...continued)
indicates, the use of the word 'shall' denotes a mandatory intent." (quoting Fowler v.
City of Anchorage , 583 P.2d 817, 820 (Alaska 1978))).
140 See, e.g., In re Francis, 604 B.R. 101, 106 (B.A.P. 1st Cir. 2019) (" 'Fail'
is distinguishable from 'refuse' in that 'refuse' involves an act of the will, while 'fail'
may be an act of inevitable necessity." (quoting In re Tougas, 354 B.R. 572, 578 (Bankr.
D. Mass. 2006)); In re Jordan, 521 F.3d 430, 433 (4th Cir. 2008) (concluding that
because "[t]he term used in [the bankruptcy code] is 'refused' not 'failed[,]' . . . the Court
must find that the Debtors' lack of compliance with the relevant court order was willful
and intentional" (quoting Pierce v. Fuller (In re Fuller), 356 B.R. 493, 495 (Bankr.
D.S.D. 2006))); United States v. Wagner, 292 F. Supp. 1, 3 (W.D. Wash. 1967) ("The
word 'refuse' [in indictment for failure to register with draft board] contains within it an
implication of guilty knowledge on the part of the actor."); Osborne v. Int'l Ry. Co., 123
N.E. 849, 850 (N.Y. 1919) ("Refusal is active, while neglect is passive.").
141 See Alaska Const. art. III, § 16.
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conclude that he simply " 'neglected his duty' because he failed to appoint a new judge
within the time given by statute." We agree with the superior court that the paragraph
makes a prima facie case of at least one of the statutory grounds for recall and is
therefore legally sufficient.
The State does not argue that this ground fails the particularity requirement
by failing to give the governor fair notice of the conduct at issue. The State does make
three arguments against the paragraph's legal sufficiency, all of which we reject. First,
the State argues that the paragraph does not make a prima facie case of incompetence
because it fails to "allege that the governor did not understand his duty to appoint by the
deadline; the court itself added this fact." But legal sufficiency does not require the
explicit statement of every reasonable inference from the facts that are stated; if it did,
the 200-word limit could never be satisfied and the citizens' right to initiate a recall
142 As explained above, voters can determine that one or more
would be an empty right.
of the statutory grounds for recall are satisfied even while making different, but
reasonable, inferences about the governor's intent or level of understanding.
Second, the State faults the superior court's analysis for its overlapping
definitions, by which "presumably all neglect of duty demonstrates a lack of fitness,"
"mak[ing] 'neglect of duty' completely redundant." But as explained above, applying
the common meaning of these statutory terms does not require us to define them so
precisely as to eliminate the possibility of overlap.
142 The "notice pleading" standard of civil litigation again provides the
appropriate analytical framework. When assessing the sufficiency of a complaint, we
"presume all factual allegations of the complaint to be true and make all reasonable
inferences in favor of the non-moving party." DeRemer v. Turnbull , 453 P.3d 193, 196
(Alaska 2019) (emphasis added) (quoting Adkins v. Stansel , 204 P.3d 1031, 1033
(Alaska 2009)).
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Third, the State argues that "a harmless act with no lasting impact" - like
the failure to appoint a judge within the time allowed by statute - should not be grounds
for recall because if it is, the process is effectively "a no-cause political recall." More
generally, the State argues that the Division and reviewing courts should act as
gatekeepers to determine which allegations are serious enough to be presented to the
voters. The State argues that "a governor's failure to issue a proclamation to
commemorate Women Veterans Day," for example, in violation of a statutory
143 would be inconsequential and should never satisfy a for-cause recall process
mandate,
like Alaska's.
But it is for the voters - not the Division or the courts - to judge the
seriousness of an alleged ground.144 The people asked to sign petitions must decide
whether the allegations are serious enough to warrant a recall election; each voter in the
voting booth must decide whether the allegations are serious enough to warrant removal
from office. We are not naive to the reality that some voters will vote for or against
recall motivated by policy differences or political loyalties totally divorced from the
grounds alleged in the recall petition. This will be the case regardless of how the
legislature states the grounds for recall and how those grounds are defined. But we
cannot police the motivations of recall committees, petition signers, or voters; our task
is to determine whether the recall application's allegations are legally sufficient and are
particular enough to give the targeted official fair notice of the claim. The first paragraph
of Recall Dunleavy's petition satisfies these requirements.
143 AS 44.12.078.
144 See Meiners v. Bering Strait Sch. Dist. , 687 P.2d 287, 301 (Alaska 1984)
("Again, it is the responsibility of the voters to make their decision in light of the charges
and rebuttals. It is not the role of the [elections officials] to take the matter out of the
voters' hands.").
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2. Paragraph 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."
The secondparagraph allegesthatthegovernor violated Alaska law and the
Alaska Constitution by misusing state funds for partisan purposes. We accept as true the
allegation that the governor used state funds without proper disclosure and "authoriz[ed]
and allow[ed] the use of state funds for partisan purposes to purchase electronic
advertisements and direct mailers making partisan statements about political opponents
and supporters." State law does require that state funds be used for public purposes, and
it does require certain disclosures regarding expenditures that are partisan or campaign-
145 The paragraph thus alleges unlawful conduct that would in fact be unlawful.
related.
Accepting the factual allegations as true, as we must,146 we conclude that the paragraph
makes a prima facie showing of at least one statutorily prescribed ground for recall.
145 Recall Dunleavy cited some of these laws in its statement of grounds,
though without identifying which law pertained to which ground: Alaska Const. art. IX,
§ 6 ("No tax shall be levied, or appropriation of public money made, or public property
transferred, nor shall the public credit be used, except for a public purpose."); AS 39.52
(Executive Branch Ethics Act); "AS 15.13, including .050, .090, .135, and .145"
(addressing registration of persons or groups intending to make political expenditures,
requiring certain disclosures, and prohibiting expenditure of public funds to influence
election outcomes); Legislative Council (31-L51006) (memo from Daniel C. Wayne,
Legislative Counsel, to Representative Zack Fields (May 20, 2019) with subject line
"Executive Branch Ethics Act restrictions on use of funds for partisan political purposes
(Work Order No. 31-LS1006)").
146 Meiners, 687 P.2d at 300 n.18 ("We emphasize that it is not our role, but
rather that of the voters, to assess the truth or falsity of the allegations in the petition.").
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Again, if voters accept the factual premise, they may draw their own
inferences from the conduct alleged. They may conclude that the governor knew his
conduct was illegal and intentionally violated the laws about use of public funds and
proper disclosures - a prima facie showing of lack of fitness - or that the governor did
not know he was violating these laws - a prima facie showing of incompetence. The
paragraph also alleges misuse of funds; because the governor has the duty to use funds
147 the allegation may be read as alleging a neglect of duties.
only for lawful purposes,
We conclude that the allegation is legally sufficient.
TheStateargues that theallegation"lacks thenecessaryfactualparticularity
to support a recall." It argues that "[w]ithout any information about either the statements
or the individuals, neither the voters nor the Division nor this Court" can determine
whether any laws were broken. But this argument fails for two reasons. First, the factual
allegations in this paragraph, which we assume to be true, establish a prima facie
violation of law. Use of state funds "for partisan purposes," if true, violates the Ethics
148 And the use of state funds to influence the outcome of the election of a candidate
Act.
to a state or municipal office, if true, violates Alaska's campaign finance law.149
Assuming the facts are true, there is no need for additional information to establish a
ground for recall.
147 See Alaska Const. art. IX, § 6 ("No tax shall be levied, or appropriation of
public money made . . . except for a public purpose.").
148 AS 39.52.120(b)(6) ("A public officer may not use or authorize the use of
state funds, facilities, equipment, services, or another government asset or resource for
partisan political purposes.").
149 AS 15.13.145.
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Second, under the notice pleading standard, an allegation need not contain
all the facts necessary to determine whether a law has been broken, nor would this
always be feasible within the 200-word limit. We conclude that this allegation puts the
governor on notice of the claim and gives him a fair opportunity to respond, which is all
150
the law requires.
3. Paragraph 3: "Governor Dunleavy violated separation-of-
powers by improperly using the line-item veto to attack the
judiciary and the rule of law."
The third paragraph, as edited by the superior court to eliminate the final
151
clause,
alleges that the governor violated the separation of powers doctrine "by
improperly using the line-item veto to attack the judiciary and the rule of law." In its
opening brief the State contested only the paragraph's factual sufficiency. After oral
argument we asked for supplemental briefing on the paragraph's legal sufficiency as
152
well.
Accepting as true the paragraph's allegation of motive - that the governor
used the veto "improperly" and "to attack the judiciary and the rule of law" - we
conclude that the paragraph is legally sufficient and satisfies the particularity
requirement. To explain our conclusion we first set out the constitutional background
of the principles at issue.
150 See Meiners , 687 P.2d at 300.
151 As noted above, the superior court found legally insufficient the allegation
that the governor violated separation of powers by using his veto power "to preclude the
legislature from upholding its constitutional Health, Education and Welfare
responsibilities."
152 State, Div. of Elections v. Recall Dunleavy, No. S-17706 (Alaska Supreme
Court Order, Apr. 2, 2020).
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a. The line-item veto generally
The governor has the constitutional authority to veto bills passed by the
153
legislature and may also, "by veto, strike or reduce items in appropriation bills." The
line-item veto (or "item veto") has several purposes: (1) to prevent "logrolling," a
practice by which the legislature "deliberately insert[s] in one bill several dissimilar or
incongruous subjects in order to secure the necessary support for passage of the
154 155
measure"; and (2) to give "governors some ability to limit state expenditures."
"Alaska's constitutional convention delegates intended to 'create a strong executive
156
branch with "a strong control on the purse strings" of the state.' "
Accordingly, the
153 Alaska Const. art. II, § 15 ("The governor may veto bills passed by the
legislature. He may, by veto, strike or reduce items in appropriation bills. He shall
return any vetoed bill, with a statement of his objections, to the house of origin.").
154 Meyer v. Alaskans for Better Elections, 465 P.3d 477, 482 (Alaska 2020)
(quoting Gellert v. State, 522 P.2d 1120, 1122 (Alaska 1974)).
155 Alaska Legislative Council v. Knowles (Knowles I), 21 P.3d 367, 373
(Alaska 2001); see Richard Briffault, The Item Veto in State Courts, 66 TEMP. L. R EV.
1171, 1177 (1993) ("The item veto represents the coming together of three widespread
state constitutional policies: the rejection of legislative logrolling; the imposition of
fiscal restrictions on the legislature; and the strengthening of the governor's role in
budgetary matters."); see also generally Nicholas Passarello, The Item Veto and the
LASKA L. R EV. 125, 129-36 (2013)
Threat of Appropriations Bundling in Alaska, 30 A
(examining the line-item veto generally and its use in Alaska).
156 Knowles I, 21 P.3d at 372 (quoting Thomas v. Rosen, 569 P.2d 793, 795
(Alaska 1977) (quoting 3 PACC 1740 (Jan. 11, 1956))); see also Alaska Legislative
Council ex rel. Alaska State Legislature v. Knowles (Knowles II), 86 P.3d 891, 895
(Alaska 2004) (holding governor's veto power applies only to monetary appropriations).
However, as we observed in Knowles I, "this control gives the governor no appropriation
power. The item veto permits the governor only to tighten or close the state's purse
strings, not to loosen them or to divert funds for a use the legislature did not approve."
21 P.3d at 372.
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line-item veto found in the Alaska Constitution is an especially strong one. Alaska's
governor, unlike most, may use the veto not just to eliminate individual items in
appropriations bills but also to reduce the amount appropriated. 157 And the legislature
158
can override a veto only by a three-quarters majority vote.
b. The governor's line-item veto power is limited by other
constitutional provisions.
The governor has broad discretion to exercise the veto power; vetoes are
political and legislative acts,159
and it is the role of the judiciary to judge their legality,
not their wisdom. "When an act is committed to executive discretion, the exercise of that
discretion within constitutional bounds is not subject to the control or review of the
courts. To interfere with that discretion would be a violation of the doctrine of
160 161
separation of powers." If a veto is "within constitutional bounds" and is
162
accompanied by a veto message that satisfies the "minimum of coherence standard,"
157 Eleven other states provide for the reduction power. See Gubernatorial
Veto Authority with Respect to Major Budget Bill(s) , NAT 'L CONF. S T. L EGISLATURES,
atTable6-3(Dec.2008),https://www.ncsl.org/research/fiscal-policy/gubernatorial-veto-
authority-with-respect-to-major.aspx.
158 Alaska Const. art. II, § 16.
159 See Knowles I, 21 P.3d at 375-76; see also Arnett v. Meredith, 121 S.W.2d
36, 38 (Ky. 1938) ("[T]he exercise of the right of veto, wherever it is conferred by the
local Constitution, involves the performance of legislative functions instead of executive
functions.").
160 Pub. Def.Agencyv.SuperiorCourt, Third Judicial Dist., 534 P.2d 947,950
(Alaska 1975) (emphasis added).
161 Id.
162 See Knowles I, 21 P.3d at 376. An express constitutional condition on the
veto power is that the governor provide "a statement of his objections" to the item or
(continued...)
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courts will not interfere. Checking the wisdom of the governor's lawful veto is up to the
legislature through the exercise of its power to override. 163
But as with all discretionary governmental actions, the exercise of the
164 We held in von
governor's veto power must be "within constitutional bounds."
Stauffenberg that "elected officials cannot berecalled for legally exercisingthediscretion
granted to them by law."165 Although we cited a Washington case, Chandler v. Otto, for
this proposition, the court in Chandler said it slightly differently: "Legally sufficient
means that an elected official cannot be recalled for appropriately exercising the
discretion granted him or her by law."166 The Washington Supreme Court elaborated on
this rule in In re Shipman, holding that "[i]f a discretionary act is involved [in a recall
petition], the petitioner must show that the official exercised discretion in a manifestly
167 And the New Mexico Supreme Court held in CAPS v. Board
unreasonable manner."
162 (...continued)
amount vetoed. Alaska Const. art. II, § 15. The purpose of the veto message is two-fold:
"It allows the legislature to determine what it must do to avoid incurring another veto.
And it forces the governor to reveal his or her reasoning, 'so that both the Legislature
and the people might know whether or not he was motivated by conscientious
convictions in recording his disapproval.' " Knowles I, 21 P.3d at 375-76 (quoting
Arnett , 121 S.W.2d at 40).
163 Alaska Const., art. II, § 16.
164 See Pub. Def. Agency, 534 P.2d at 950.
165 von Stauffenberg v. Comm. for Honest & Ethical Sch. Bd., 903 P.2d 1055,
1060 (Alaska 1995) (emphasis added) (citing Chandler v. Otto, 693 P.2d 71, 74 (Wash.
1984)).
166 Chandler, 693 P.2d at 74 (emphasis added).
167 886 P.2d 1127, 1131 (Wash. 1995); see also Teaford v. Howard, 707 P.2d
1327, 1332 (Wash. 1985) ("[O]fficials cannot be recalled for making a discretionary
(continued...)
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168
Members that a recall petition alleging misfeasance requires a showing that the public
169
official exercised discretion "with an improper or corrupt motive."
The conclusion in
170
these cases is the same whether the standard is "legal" exercise of discretion,
171 or discretionary acts that arenot"unreasonable"172
"appropriate"exerciseofdiscretion,
or done with "improper or corrupt motive"173 : simply because an act is committed to an
official's discretion does not mean that citizens may not properly cite it as a reason for
recall.
c. The governor's veto power is bounded by the separation
of powers doctrine.
The Alaska Constitution "vest[s] 'legislative power in the legislature;
executive power in the governor; and judicial power' in the courts."174
Derived from this
"distribution of power among the three branches of government" is the separation of
powers doctrine, which "limits the authority of each branch to interfere in the powers that
167 (...continued)
decision unless they act arbitrarily or unreasonably.").
168 Misfeasance is "a lawful act performed in a wrongful manner."
Misfeasance, BLACK 'S LAW DICTIONARY (11th ed. 2019).
169 832 P.2d 790, 792 (N.M. 1992).
170
See von Stauffenberg, 903 P.2d at 1060.
171 See Chandler , 693 P.2d at 74.
172 See Teaford , 707 P.2d at 1332.
173 See CAPS, 832 P.2d at 792.
174
Jones v. State, Dep't of Revenue, 441 P.3d 966, 981 (Alaska 2019) (quoting
Alaska Pub. Interest Research Grp. v. State , 167 P.3d 27, 35 (Alaska 2007)).
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175
have been delegated to the other branches." Although not specifically named in the
Constitution, "the separation of powers and its complementary doctrine of checks and
176
balances are part of the constitutional framework of this state."
Other states' courts have held that another branch's blocking of court
system funding violates the separation of powers doctrine if it results in underfunding
the judicial branch to such an extent that the courts cannot continue to meet their
177 The State agrees that a funding failure of this magnitude
constitutional mandates.
would be unconstitutional.
But the separation of powers doctrine does more than protect each branch's
functional existence. We have described the doctrine's purposes as "to preclude the
exercise of arbitrary power and to safeguard the independence of each branch of
175 Alaska Pub. Interest Research Grp. , 167 P.3d at 35 .
176 Id. at 34-35; see also Pub. Def. Agency v. Superior Court, Third Judicial
Dist., 534 P.2d 947, 950 (Alaska 1975) ("[I]t can fairly be implied [from the
Constitution's separate articles] that this state does recognize the separation of powers
doctrine.").
177 See County of Barnstable v. Commonwealth, 572 N.E.2d 548, 550 (Mass.
1991) ("The constitutional establishment of a tripartite form of government carries with
it an implied assumption that sufficient funds will be provided to operate all three
branches."); In re Fiscal Year 2010 Judicial Branch Appropriations, 27 So. 3d 394, 395
(Miss. 2010) ("As part of the separation of powers among, and checks and balances on,
these three co-equal branches of government, our Legislature has the duty to fund the
judicial branch of government."); State ex rel. Durkin v. City Council of Youngstown,
459 N.E.2d 213, 216 (Ohio 1984) ("The doctrine of separation of powers requires that
the funds necessary for the administration of justice be provided to the courts."); State
ex rel. Metro. Pub. Def. Servs., Inc. v. Courtney, 64 P.3d 1138, 1141 (Or. 2003) ("[W]ith
respect to the judiciary, the separation of powers principle is not offended by choices that
the other branches make, unlessthosechoices unduly burden thecapacityofthe judiciary
to perform its core function.").
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178
government." One branch's threat to the independence of another - well short of its
elimination by underfunding - may therefore violate separation of powers. For
example, in Public Defender Agency v. Superior Court, Third Judicial District , we
reviewed a superior court's order that the attorney general's office prosecute someone
for contempt of a child support order; we decided that the order violated the separation
of powers doctrine because it overstepped "the line which divides [the judicial] branch
ofgovernment fromthat oftheexecutive"by"infring[ing]upon thediscretionary powers
179 In Bradner v. Hammond we reviewed a law
residing in the executive branch."
requiring legislative confirmation of "subcabinet officials, including deputy
commissioners and division heads of the executive branch"; we affirmed a superior court
order striking down the law as violating separation of powers because it infringed on the
governor's authority to appoint executive officials without legislative confirmation
except as constitutionally required.180 And in Alaska Public Interest Research Group v.
State we considered whether the legislature's creation of the Alaska Workers'
Compensation Appeals Commission as an executive agency violated separation of
powers by "tak[ing] judicial power from the judicial branch and delegat[ing] that power
to the executive."181 We concluded that it did not because the Constitution authorized
178 Alaska Pub. Interest Research Grp. , 167 P.3d at 35; see also Bradner v.
Hammond, 553 P.2d 1, 5 (Alaska 1976) (describing separation of powers doctrine's
underlying rationaleas"theavoidanceoftyrannical aggrandizement ofpowerby asingle
branch of government").
179 534 P.2d at 950-51.
180 553 P.2d at 1-2, 7-8 ("In our view, the separation of powers doctrine
requires that the blending of governmental powers will not be inferred in the absence of
an express constitutional provision.").
181 167 P.3d at 34-35.
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the creation of such quasi-judicial agencies, the Commission's jurisdiction was limited
to workers' compensation cases, and its decisions remained subject to judicial review. 182
We have not previously had to consider a disputed veto targeting the
judicial branch, but other courts have. Some courts deemunconstitutional any executive
or legislative interference in the judiciary's own assessment of its budgetary needs.183
In Jorgensen v. Blagojevich the Illinois Supreme Court held that the governor's use of
the line-item veto to reduce a cost of living adjustment for state judges violated
separation of powers.184 The Illinois Supreme Court described the threat this posed to
judicial independence:
As arbiters of the law and guardians of individual liberties,
members of the judiciary often find themselves at odds with
these other branches of government. In fulfilling their duties,
judges must frequently challenge the actions of the very
governmental bodies who provide the financial and other
resources they need to operate. Such challenges are
unavoidable. They are an inherent part of the adjudicatory
182 Id. at 35-37.
183 See In re Fiscal Year 2010 Judicial Branch Appropriation , 27 So. 3d 394,
395 (Miss. 2010) (holding that statute authorizing State Fiscal Officer to cut
appropriations could not constitutionally be applied to judicial branch); State ex rel.
Brotherton v. Blankenship , 207 S.E.2d 421, 431 (W.Va. 1973) (citing "maxim that the
judiciary department possesses the inherent power to determine its needs and to obtain
the funds necessary to fulfill such needs" and holding that governor lacked constitutional
authority to disapprove or reduce specific items in judiciary's budget); see also State ex
rel. Durkin v. City Council of Youngstown, 459 N.E.2d 213, 216 (Ohio 1984) (citing
"well-established principle that the administration of justice by the judicial branch of the
government cannot be impeded by the other branches of the government in the exercise
of their respective powers" and holding that city council was required to fully fund court
clerk's salary as required by statute (quoting State ex rel. Foster v. Bd. of Cty. Comm'rs ,
242 N.E.2d 884, 886 (Ohio 1968))).
184 811 N.E.2d 652, 656 (Ill. 2004).
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process. That their constitutional duty requires this of judges
does not mean their decisions will be well received by the
other branches of government. Retribution against the courts
for unpopular decisions is an ongoing threat. [185]
The governor's primary argument in Jorgensen was that his veto was unreviewable
because its use was committed to his discretion by the constitution.186 The Illinois
Supreme Court held, however, that this position was "incompatible with the principles
of separation of powers and checks and balances that are the foundation for our tripartite
system of government."187
A federal district court had similar concerns in a case involving the federal
Line Item Veto Act, holding the Act unconstitutional in part because it violated the
separation of powers doctrine.188 Although the court based its separation of powers
decision on the "transfer [of] non-delegable legislative authority to the Executive
Branch,"189 it cautioned in a footnote that "the Line Item Veto could also affect judicial
185 Id. at 660-61.
186 Id. at 666.
187 Id.
188 City of New York v. Clinton, 985 F. Supp. 168, 181-82 (D.D.C. 1998). The
Line Item Veto Act was later struck down by the Supreme Court as violating the
Presentment Clause, which requires that legislation be passed by both houses of
Congress before the President may sign it into law. See U.S. Const. art. I, § 7, cl. 2;
Clinton v. City of New York, 524 U.S. 417, 436-49 (1998). The Supreme Court in
Clinton held that the Line Item Veto Act effectively "authorize[d] the President to create
a different law" than that passed by Congress, circumventing the procedures required by
the Presentment Clause. 524 U.S. at 448. The Alaska Constitution has similar
procedural requirements, but it expressly authorizes the line-item veto. See Alaska
Const. art. II, § 15.
189 Clinton, 985 F. Supp. at 181.
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independence," explaining: "It is possible that the President might use the Line Item
190
Veto to manipulate the judiciary's budget, thus exerting pressure on its members."
Similar concerns are evident in the United States Supreme Court's explanation of the
191 which prevents the
purposes of the U.S. Constitution's Compensation Clause,
diminishment of judges' salaries during their terms of office: "A Judiciary free from
control by the Executive and the Legislature is essential if there is a right to have claims
decided by judges who are free from potential domination by other branches of
government."192
Courts can usually stay out of veto disputes between the legislative and the
executivebranches without risk to theconstitution's distributionofpowers;193 thepowers
of the legislative and executive branches are close to equipoise, and those two branches
190 Id. at 179 n.14. The court cited a law review article that focused on the
question "Could an executive use the line item veto to punish, reward, or otherwise
influence the judiciary?," concluding that the risk to judicial independence was
significant. Id. (citing Robert Destro, Whom Do You Trust? Judicial Independence, the
Power of the Purse & the Line Item Veto , F ED. L AW., 26, 29 (1997).
191
See U.S. Const. art. III, § 1 ("The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour, and shall, at stated Times,
receive for their Services, a Compensation, which shall not be diminished during their
Continuance in Office."). The Alaska Constitution has a parallel provision. See Alaska
Const. art. IV, § 13 ("Compensation of justices and judges shall not be diminished during
their terms of office, unless by general law applying to all salaried officers of the State.").
192 United States v. Will, 449 U.S. 200, 217-18 (1980).
193 See Knowles I, 21 P.3d 367, 376 (Alaska 2001) (observing that disputes
involving validity of governor's reasons for veto "are inherently political" and "[t]he
judiciary has no special competence" to settle them).
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194
can negotiate political issues from positions of roughly equal strength. But the
judiciary does not negotiate its decisions with the other branches, even though it is, by
195 and is often called upon to declare
some measures, the weakest branch of government
the legality of the other branches' actions.196 The State, through the executive branch,
appears before the courts as a litigant more than does any other single entity. An
implication that the State can pressure a court to rule in its favor because of budgetary
concerns sends a discouraging message to other litigants - especially those litigating
194 See Simpson v. Murkowski , 129 P.3d 435, 447 (Alaska 2006) ("[U]nder the
Alaska Constitution 'it is the joint responsibility of the governor and the legislature to
determine the State's spending priorities . . . .' "); Ninetieth Minn. State Senate v. Dayton ,
903 N.W.2d 609, 624 (Minn. 2017) ("[O]ur constitution does not requirethat theJudicial
Branch referee political disputes between our co-equal branches of government over
appropriations and statewide policy decisions when those branches have both an
obligation and an opportunity to resolve those disputes between themselves.").
195 See, e.g., T HE FEDERALIST NO. 78 (Alexander Hamilton) ("[T]he judiciary
is beyond comparison the weakest of the three departments of power; . . . [it] can never
attack with success either of the other two; and . . . all possible care is requisite to enable
it to defend itself against their attacks."); Jorgensen v. Blagojevich , 811 N.E.2d 652, 660-
62 (Ill. 2004).
196 See Marbury v. Madison, 5 U.S. 137, 177 (1803) ("It is emphatically the
province and duty of the judicial department to say what the law is."); Wielechowski v.
State, 403 P.3d 1141, 1142-43 (Alaska 2017) ("[O]f the three branches of our state
government, we are entrusted with the 'constitutionally mandated duty to ensure
compliance with the provisions of the Alaska Constitution.' " (quoting Malone v.
Meekins, 650 P.2d 351, 356 (Alaska 1982))); see also Gamble v. United States, 139 S.
Ct. 1960, 1985 n.5 (2019) (Thomas, J., concurring) (noting that "[i]n the context of a
judicial case or controversy," other branches' determinations about the constitutionality
of their actions "do not bind the Judiciary in performing its constitutionally assigned
role," and that "consistent with the nature of the 'judicial Power,' the federal courts'
judgments bind all parties to [a] case, including Government officials and agencies").
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against the State - who look to the courts for impartial justice and in most cases lack
any countervailing influence. 197
In short, the separation of powers doctrine is intended in part to ensure that
the judiciary is not pressured to decide cases with one eye on its budget. We conclude
that the doctrine may be violated by a governor's use of the veto power with the intent
of pressuring the courts to rule in a particular way.
d. Analyzing the sufficiency of the allegation
Taken as true, Recall Dunleavy's allegation that the governor violated the
separation of powers doctrine "by improperly using the line-item veto to attack the
judiciary and the rule of law" is legally sufficient. As explained above, the veto power,
though discretionary, may be exercised only within constitutional limits. Separation of
powers is a fundamental part of our constitutional structure, and the doctrine may be
violated by a governor's "improper" use of a veto "to attack the judiciary." The
paragraph thus makes a prima facie showing of lack of fitness; voters could conclude that
violating separation of powers by an improper use of the veto demonstrates disregard for
197 Similar concerns were voiced during hearings on the Line Item Veto Act,
when the Chief Judge of the Sixth Circuit Court of Appeals testified on behalf of the U.S.
Judicial Conference that "[t]he last thing needed is a new mechanism to give the
executive branch control of the Judiciary's budget, particularly in light of the fact that
the United States, almost always through the executive branch, has more lawsuits in the
Federal courts than any other litigant." Joint Hearing Before the H. Comm. on Gov't
Reform and Oversight & the S. Comm. on Governmental Affairs, 104th Cong. 88
(statement of Hon. Gilbert S. Merritt, Chairman, Exec. Comm. Judicial Conference of
the United States); see also Louis Fisher, Judicial Independence and the Line Item Veto ,
36 JUDGES ' J. 18, 52-53 (1997) (citing Letter from Leonidas Ralph Mecham, Sec'y,
Judicial Conference of the United States, to Senators Ted Stevens and Pete V. Domenici
(Mar. 15, 1996)).
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198
the Constitution the governor is entrusted to uphold. The paragraph makes a prima
facie showing of incompetence; voters could conclude that a governor who is unaware
of the limits and constitutional importance of the separation of powers doctrine
demonstrates a lack of ability to perform required duties. 199
The superior court held that "neglect of dut[y]" could also be shown by the
allegation that "Governor Dunleavy breached his oath of office to defend the
Constitution by attempting to infringe upon the powers reserved to the Judicial branch."
We agree with the superior court that this made a prima facie showing of "the
nonperformance of a duty of office established by applicable law."
The State argues that the separation of powers allegation does not satisfy
the particularity requirement because it "fails to inform anyone unfamiliar with the issue
of what the governor did." We agree that this is the leanest of the four allegations; it
does not tell the whole story, nor could it within the statutory 200-word limit. But the
ultimate test is of "notice" and whether the governor has "a fair opportunity to defend his
200 The State does not argue that the governor
conduct in a rebuttal limited to 200 words."
cannot understand the factual basis for the allegation. The paragraph alleges the
act - use of the line-item veto - and asserts its illegality by reference to the separation
of powers doctrine and an "improper" motive. Both the committee and the governor
198 See Alaska Const. art. XII, § 5 (requiring public officers to swear to
"support and defend . . . the Constitution of the State of Alaska").
199 An analogous case is Coghill v. Rollins, in which the superior court found
legally sufficient the allegation that the lieutenant governor lacked familiarity with the
election laws he was charged to administer. Coghill v. Rollins, No. 4FA-92-1728 CI,
Memorandum Decision (Alaska Super., Sept. 14, 1993), appeal dismissed as moot,
Coghill v. Rollins, Supreme Court No. S-6108 (Alaska Supreme Court Order, Apr. 12,
1995).
200 Meiners v. Bering Strait Sch. Dist., 687 P.2d 287, 302 (Alaska 1984).
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have the same opportunity to explain the allegation's factual background and why it does
or does not support recall. It is then "the responsibility of the voters to make their
201 Again considering the statutory
decision in light of the charges and rebuttals."
202 and the liberality with which we are required to review citizens'
substantiality test
exercise of this constitutional right,203 we conclude that the allegation satisfies the
particularity requirement.204
4. Paragraph 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."
Thefourth paragraph oftherecall applicationagaininvolvesthegovernor's
discretionary power to apply the line-item veto to appropriations bills and to decrease
201 Id. at 301.
202 AS 15.45.550(1).
203 Meiners, 687 P.2d at 296.
204 The dissent contends that vetoing "such a small portion" of the court
system's budget could not violate the separation of powers. It also contends that this
court has not concluded that it could. But we conclude that vetoing this non-de minimis
amount of the total budget, if done for improper purposes as the recall application
alleged, could violate separation of powers. The dissent also contends that this court has
not concluded that "the governor illegally used the line-item veto to attack the judiciary
and the rule of law." It is for the voters, not this court, to decide the truth of the
allegations that the governor's veto was for an improper purpose, such as for retribution
or with an intent to pressure the courts to rule a particular way. Our role is limited to
deciding whether the allegations, if true, could justify recall as the constitution permits
for lack of fitness or incompetence or neglect of duty. We conclude that they do.
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205
legislative appropriations. It alleges that the governor made a mistaken veto that, if
uncorrected, would have "cause[d] the state to lose over $40 million in additional federal
Medicaid funds." The State does not contest that the paragraph is alleged with sufficient
factual particularity; the governor has a fair opportunity to respond.
We conclude that the allegation is also legally sufficient. While the
governor's "legal" or "proper" exercise of discretion cannot establish a for-cause ground
206 as discussed above, the specific allegation here is that the governor was not
for recall,
making a conscious decision but rather "acted incompetently" and made a mistake, later
corrected. " 'Discretionary acts' are those requiring 'personal deliberation, decision and
judgment.' "207 A mistake by definition is not a deliberate decision or judgment; it is not
an exercise of discretion.208
209
The consequences of a mistaken veto may be serious and hard to correct.
205 Alaska Const. art. II, § 15.
206 See von Stauffenberg v. Comm. for Honest & Ethical Sch. Bd., 903 P.2d
1055, 1060 (Alaska 1995).
207 State v. Haley, 687 P.2d 305, 316 (Alaska 1984) (quoting W. PROSSER,
HANDBOOK OF THE LAW OF TORTS § 132, at 988 (4th ed. 1971)); see Discretion,
BLACK 'S LAW DICTIONARY (11th ed. 2019) ("1. Wise conduct and management
exercised without constraint; the ability coupled with the tendency to act with prudence
and propriety. 2. Freedom in the exercise of judgment; the power of free
decision-making.").
208 See Tanenbaum v. D'Ascenzo, 51 A.2d 757, 758 (Pa. 1947) (holding that
mandamus, which typically is not available for setting aside discretionary acts of public
officials, nonetheless is appropriate when "by a mistaken view of the law or an arbitrary
exercise of authority there has been in fact no actual exercise of discretion.").
209 As noted above, the Alaska constitution requires a three-quarters majority
vote in the legislature to override a veto of an appropriation bill. Alaska Const. art. II,
(continued...)
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Some voters could decide that even a single mistake of sufficient magnitude
demonstrates unfitness or incompetence. We therefore conclude that this allegation
makes a prima facie showing of at least one of the statutorily prescribed grounds for
210
recall and is both legally and factually sufficient.
VI. CONCLUSION
For these reasons, we AFFIRM the superior court's order granting
summary judgment to Recall Dunleavy.
209 (...continued)
§ 16.
210 Although this paragraph specifically alleges that the governor acted
"incompetently," Recall Dunleavy argues that it encompasses all three grounds for recall
alleged in the application's introductory phrase. We conclude only that the allegation
satisfies at least one of the statutorily prescribed grounds for recall; we leave it to the
voters to decide whether it satisfies more than one.
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STOWERS, Justice, dissenting in part.
I dissent from the court's holdings that Recall Dunleavy's two allegations
concerning Governor Dunleavy's exercise of his constitutional authority to veto certain
appropriations by the legislature are legally sufficient. In my opinion, neither allegation
is legally sufficient.
Article II, section 15 of the Alaska Constitution provides: "The governor
may veto bills passed by the legislature. He may, by veto, strike or reduce items in
appropriation bills. He shall return any vetoed bill, with a statement of his objections,
to the house of origin." This express constitutional grant of authority and discretion is
1 And the court fails to cite any
not otherwise limited or qualified in our constitution.
history from the constitutional convention where delegates expressed any intention to
limit the governor's strong veto authority. To the contrary, as the court notes above,
when the delegates to the Alaska constitutional convention deliberated and drafted the
constitution - and when Alaskans voted to adopt their work - they decided that the
State of Alaska was to be led by an executive embued with an especially strong veto
power, including the power to reduce amounts appropriated.2 That is what Governor
Dunleavy did in this case.
Notwithstanding the notable absence of textual limiting language in our
constitution and without identifying any constitutional convention history supporting
limitation, the court today creates new limitations on the governor's explicit
constitutional veto authority. The court says the governor's line-item veto is limited by
1 Of course, the constitution authorizes the legislature to override a veto by
a two-thirds majority vote or, for revenue or appropriations bills, a three-quarters
majority vote. Alaska Const. art. II, § 16.
2 Opinion at 39-40.
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3
other "constitutional bounds" like the separation of powers doctrine. But the separation
of powers doctrine, whatever its contours in other contexts, is not applicable to the
governor's line-item vetoes in this case.
First, the Alaska Constitution does not specifically express or recognize a
separation of powers - the doctrine is a court-created doctrine, "implied [from the
constitution's separate articles]." 4
Second, this is not a case where the governor's veto was of such a
magnitude that it underfunded the judicial branch to such an extent that the courts could
not continue to meet their constitutional mandates. In this case, the governor's line-item
veto reduced the court system's budget by $334,700.
Third, and of the greatest concern, the court's opinion holds that the
separation of powers "doctrine may be violated by a governor's use of the veto power
with the intent of pressuring the courts to rule in a particular way."5 And how is one to
determine this malign intent? The court says that a recall petition's mere allegation that
the governor " 'improperly us[ed] the line-item veto to attack the judiciary and the rule
of law' is legally sufficient."6 The court, purporting to apply a "prima facie" standard,
accepting the allegations of "improper" intent as true, leaves it to the voters to assess the
truth of the allegation.7
The court here makes an egregious error. Nowhere in its opinion does the
3 Opinion at 40-41, 49.
4 Pub. Def. Agency v. Superior Court, Third Judicial Dist., 534 P.2d 947, 950
(Alaska 1975).
5 Opinion at 49.
6 Opinion at 49-50.
7 Opinion at 19, 49-50.
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court actually conclude that the governor's line-item veto of such a small portion of the
court system's budget violates the separation of powers, nor does the court conclude the
governor illegally used the line-item veto to attack the judiciary and the rule of law.
In von Stauffenberg v. Committee for Honest & Ethical School Board we
held that allegations in which the recall targets were merely "properly exercising the
8 Unless and until
discretion granted to themby law" were insufficient grounds for recall.
the court actually determines that the governor's vetoesviolated the Alaska Constitution,
that the governor did not legally exercise the discretion granted to him by the
constitution, he cannot be subject to recall. The governor, and the citizens of Alaska, are
entitled to a legal determination whether the governor's exercise of his constitutional
discretion was valid. This determination is a legal decision that only the court can make.
The court abdicates its responsibility and leaves it to the voters to decide
this question of law. The court further abdicates its responsibility in failing to determine
the legal question whether the governor's line-itemvetos actually violated the separation
of powers doctrine. Even accepting arguendo that a line-item veto might violate the
separation of powers doctrine, the court does not conclude that in this case the
governor's line-item veto was such a violation. It is my contention that the court must
first determine if the governor actually did violate a constitutional threshold - only then
can the voters decide if that violation merits recall. But the court leaves it to the voters
to make these legal constitutional determinations.
Thecourt correctly notes that theconstitutionalframers rejected leavingthe
scope of the voter's right to recall to the voters themselves.9 The framers instead left the
8 903 P.2d 1055, 1060 (Alaska 1995).
9 Opinion at 7-10.
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10
task of determining the grounds for recall to the legislature, and the legislature adopted
11
by statute the four grounds discussed in the main opinion.
We have previously
observed, and do so again today, that the four statutory grounds can be ambiguous and
that "more carefully drawn statutes" could "decrease the need for judicial
12 We have also explained that "[t]he political nature of the recall makes
involvement."
the legislative process, rather than judicial statutory interpretation, the preferable means
of striking the balances necessary to give effect to the Constitutional command that
elected officers shall be subject to recall."13 Truer words cannot be spoken.
I urge every legislator to carefully consider the court's opinion today. The
opinion opens the door to standardless recall petitions. The court repeatedly says that
Alaska courts are to apply the "prima facie" standard to recall petition allegations and,
accepting the allegations as true, if any logical connection can be made between an
allegation and a statutory ground for recall, the petition must be found to be legally
14 I urge the legislature to, at the least, provide specific statutory definitions
sufficient.
for the recall grounds to decrease the opportunity for judicial involvement in what is best
done by the legislature - that is, legislating. This is not a partisan issue. The greatly
expanded access to recall created by the court's decision today can and will be used not
to actually seek to recall an elected official for cause, but instead to seek to recall an
10 Alaska Const. art. XI, § 8; Opinion at 10.
11 AS 15.45.510.
12 Meiners v. Bering Strait Sch. Dist., 687 P.2d 287, 296 (Alaska 1984);
Opinion at 25.
13 Meiners, 687 P.2d at 296.
14 See, e.g., Opinion at 20, 24.
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elected official because of disagreements over policy. And in Alaska, disagreement over
policy or political philosophy is not a proper subject for recall.
In my view, the governor did not violate the separation of powers by using
his constitutional discretion to line-item veto a small portion of the court's budget.
Rather, it is the court that violates the separation of powers, by intruding on and
interfering with a power expressly granted to another branch of government - the
governor's express constitutional authority to exercise his discretion to veto or reduce
a legislative appropriation.
The doctrine of separation of powers prohibits one branch of government
from "exercis[ing] any power that is not explicitly bestowed by the constitution or that
15 In doing so, it "avoid[s] . . . tyrannical
is not essential to the exercise of that power."
aggrandizement of power by a single branch of government through the mechanism of
diffusion of governmental powers."16 But it also "limits the authority of each branch to
interfere in the powers that have been delegated to the other branches" and, by doing so,
"safeguard[s] the independence of each branch of government."17
By permitting voters to recall the governor because he exercised a power
explicitly bestowed on him by the constitution, the court interferes with the power
delegated to the executive branch. In so doing the court unconstitutionally aggrandizes
its own power and imperils the independence of another branch of government. The
court's decision undermines Alaska's constitution and the separation of powers. I
therefore dissent from this part of the court's opinion.
15 16A AM. JUR. 2D CONSTITUTIONAL LAW § 236 (2020).
16 Brandner v. Hammond, 553 P.2d 1, 5 (Alaska 1976).
17 Alaska Pub. Interest Research Grp. v. State, 167 P.3d 27, 35 (Alaska 2007).
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