OPINION: Stowers’ ruling in Stevens recall sheds light on law

  • A 2006 opinion by then-Superior Court Judge and current Alaska Supreme Court Justice Craig Stowers offers insight into how he views the judicial review process for recall petitions. (Photo/Mark Thiessen/AP)

Considering the stakes and the players involved, inexplicably little attention has been given to a 2006 ruling by a judge who will ultimately hear the case to recall Gov. Michael J. Dunleavy when it reaches the Alaska Supreme Court.

While nearly every press report regarding the recall notes the relative dearth of case law covering efforts to remove statewide officials, a Superior Court decision from 2006 cited by Attorney General Kevin Clarkson in his Nov. 4 opinion to reject the recall petition is noteworthy for multiple reasons: the target was the sitting Senate President, that legislator was Dunleavy’s current Chief of Staff Ben Stevens, and the judge was Craig Stowers.

Stowers was appointed to the Supreme Court in 2009 and served as Chief Justice for three years from 2015-18.

In 2006 as an Anchorage Superior Court judge, he rejected the recall petition against Stevens filed by citizen activist and former state Rep. Ray Metcalfe amid the burgeoning VECO scandal that ultimately resulted in multiple corruption convictions but no charges ever filed against Stevens.

The transcript is worth a read for anyone who wants to know more about the legal thresholds for a recall application qualifying as “substantially in the required form” that was issued by a current Supreme Court justice.

Clarkson’s opinion concluded that the Recall Dunleavy backers’ petition did not meet that legal threshold and kicked off the anticipated court fight that got underway Nov. 27 with a 55-page motion for summary judgment filed by a high-powered legal team led by Jahna Lindemuth and Scott Kendall, who were respectively Attorney General and Chief of Staff under former Gov. Bill Walker.

The state’s response is due by Dec. 16 and oral arguments are currently scheduled for Jan. 10.

Primary among the takeaways from reading Stowers’ opinion is that the petition — and only the petition — may be considered by the court. Under the recall statute, petitions are limited to no more than 200 words. An equal 200 words are given to the official subject to recall for a defense should it reach the ballot.

What that means is attachments, affidavits, budget documents, veto statements, or 55-page motions that offer additional evidence to support the individual allegations, are irrelevant to the ultimate decision.

“I have not reached my decision with reference to any of the extraneous information that’s been provided by any of the parties,” Stowers said in his ruling.

Because of this statutory word limit, the law also requires that allegations be stated “in particular,” which according to Stowers is the basis for judicial review even under the intent for voter-driven initiatives to be construed liberally and the requirement of the court to accept allegations as factual.

“If this statute has any meaning at all,” Stowers said, “the phrase ‘described in particular’ is something that the court is required to consider as it reviews the 200 words or less in any given petition.”

For the purposes of judicial review, then, a judge or panel of judges must determine whether allegations — even when assumed to be true — actually meet one of the standards of lack of fitness, incompetence, neglect of duties or corruption.

Stowers went further by addressing what he described as “mixed questions of facts and law.”

In Stowers’ opinion, while the court cannot rule on whether an allegation is true or not, it must rule on questions of whether an allegation that claims a violation of the law is valid.

“That’s appropriate for the court, and indeed it’s my duty,” he said, “to evaluate those and to determine whether or not those are true and accurate statements of law.”

He went on, “To the extent that there are mixed questions of fact and law … then the validity of that statement in part turns on whether the statement of law is valid or not. And if it’s not, it gets stricken. And it also depends in part on whether the facts as alleged are specific enough or particular enough to create a statement that’s sufficient to go to the voters.”

Three of the grounds for recall in the petition allege violations of the law or the constitution that would fall under Stowers’ “mixed questions” standard.

Only one is highly specific. The first ground states that Dunleavy refused to appoint a judge to the Palmer Superior Court within the 45 days required under Alaska law. There is no dispute that Dunleavy did not appoint the judge within that period, although he eventually did and before the seat actually became vacant.

Whether the courts will decide that rises to lack of fitness or neglect is unknown, although we already know the Supreme Court has determined that the constitution trumps statutes in the cases of the Permanent Fund dividend formula and the voter-approved 90-day legislative session, and there is no deadline in the constitution for appointing judges.

The next two grounds are less specific. The second alleges that Dunleavy violated the law and the constitution by authorizing public funds for electronic ads and direct mailers for “partisan purposes” making “partisan statements about political opponents and supporters.”

The third alleges that 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.”

In their motion for summary judgment, the recall backers assert the second and third grounds meet the legal threshold under the standard of deference to the truth of allegations.

Clarkson wrote in his opinion that these allegations do not meet the “particularity” standard because they are too vague. Essentially, Clarkson is arguing that the claims fall short without specific allegations about what the “partisan statements” were or how exactly Dunleavy attacked the judiciary or precluded the Legislature from upholding its constitutional responsibilities.

“A court is required to make at least a threshold determination as to whether what has been alleged is factually specific enough,” Stowers said in his 2006 decision in reference to petition language.

In their 55-page motion, the recall backers lay out all their evidence to support their claims, but as noted above, the court cannot consider any of that.

The general consensus of what little case law we have is that Alaska has chosen a “middle of the road” standard that is neither too far toward political recalls for any reason nor legal standards too strict to ever be met. Stowers referenced this “middle” way in his decision in the Stevens case.

“Recall advocates must allege more than conclusory statements or arguments, otherwise our recall process drifts to the end of the spectrum where simple disagreement with an officeholder’s position on questions of policy becomes sufficient in and of themselves,” he said.

Finally, the recall backers allege incompetence over Dunleavy’s Medicaid veto of the wrong amount of state funds. The state explains that as a simple mistake since remedied; the petitioners assert that the availability of a defense does not render the allegation insufficient for recall.

In the end, the recall petitioners only need the courts to agree with them on one of the four allegations to move forward. If they are allowed, though, just don’t expect to see a campaign built around Palmer judges, mailers or Medicaid vetoes.

This is a political effort to overturn an election, pure and simple, which is not what the constitutional framers intended. Vic Fischer, the campaign co-chair and the last living constitutional delegate, wanted recall for any reason back in 1956 but he lost that debate.

We’ll see if he wins this time.

Andrew Jensen can be reached at [email protected].

Updated: 
12/06/2019 - 12:15pm