OPINION: Aarseth abdicates on judicial review

  • Superior Court Judge Eric Aarseth listens to arguments over an effort to recall Alaska Gov. Mike Dunleavy Friday, Jan. 10, 2020, in Anchorage, Alaska. Judge Aarseth ruled that an effort to recall Republican Gov. Mike Dunleavy may proceed, a decision that is expected to be appealed. The decision followed arguments in the case and came two months after Gail Fenumiai, director of the state Division of Elections, rejected a bid to advance the recall effort. (Photo/Loren Holmes/Anchorage Daily News)

As it turns out, the only thing Superior Court Judge Eric Aarseth struck from the petition to recall Gov. Mike Dunleavy was the only thing that was truly driving the effort in the first place.

In a surprise ruling from the bench on Jan. 10, Aarseth reversed the Division of Elections decision not to certify the recall petition and ordered petition booklets to be distributed no later than Feb. 10.

He allowed four of the five allegations against Dunleavy to stand, yet his reasoning to strike the charge that the governor improperly used his line item veto to “preclude the legislature from upholding its constitutional Health, Education and Welfare responsibilities” is at odds with his logic for upholding two other allegations regarding vetoes.

Despite its vagueness, Aarseth did not strike the allegation that Dunleavy used his line-item veto authority to “attack” the judiciary and the rule of law, nor did he strike the allegation that he acted “incompetently” with a mistake in a Medicaid veto.

Aarseth ruled that the charge Dunleavy precluded the Legislature from exercising its constitutional responsibilities was undermined by the fact that the remedy exists to override his vetoes and the mere fact that it is difficult to achieve a three-quarters majority was not enough to support the allegation.

What that means is that according to Aarseth, had Dunleavy held firm on his original line-item vetoes of more than $400 million, it would still not rise to the level of a recallable offense.

And yet Aarseth declined to extend that same logic to the court veto or the mistake on the Medicaid veto despite the Legislature having the exact same override remedy at its hands.

(As an aside, Aarseth’s determination that the “attack on the judiciary and rule of law” met the particularity standard was a particularly egregious dereliction of judicial review. Even recall attorney Jahna Lindemuth acknowledged the lack of specificity with a defense of the charge that boiled down to “they know what we’re talking about.”)

By declaring that recall is an inherently political process and that it isn’t for the judicial branch to apply much if any scrutiny to whether charges actually rise to the level of neglect, lack of fitness, incompetence or corruption, Aarseth shoved the needle away from the established “middle ground” for recall into the “at-will” edge of the spectrum that was expressly rejected by the constitutional framers.

Judicial review is what gives Alaska a “middle ground” standard for recall, and Aarseth abdicated this responsibility nearly entirely. In the one area he exercised his power of review, he exposed his flawed reasoning on others.

Hopefully the Supreme Court will give this weighty measure the true review and serious consideration it deserves as opposed to the slipshod bench ruling from Aarseth.

Andrew Jensen can be reached at [email protected]

Updated: 
01/15/2020 - 9:34am