Memorandum
To:

Interested Parties

Date: July 26, 2019
Re:
I.

Governor Dunleavy Recall Application – Pending
INTRODUCTION & BACKGROUND

We have been asked to briefly evaluate four groups of allegations stated in a draft
application to recall Governor Michael J. Dunleavy. Those allegations are, in substance, as
follows. Each asserts that the Governor should be recalled based on three statutory grounds for
recall: neglect of duties, incompetence, and lack of fitness. In coming to these conclusions we
have consulted, in part, with numerous election law experts as well as former Attorney Generals
and former members of the judiciary:
1. Governor Dunleavy violated Alaska law (AS 22.10.100) by refusing to appoint a judge to
the Palmer Superior Court within 45 days of receiving nominations.
2. Governor Dunleavy separately violated the Executive Branch Ethics Act (AS 39.52);
violated Alaska Campaign Disclosure Statutes (AS 15.13); and misused state funds
in violation of AS 15.13.145(b) 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 his political
opponents and supporters.
3. 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.
4. Governor Dunleavy acted incompetently when he mistakenly vetoed $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 federal Medicaid funds.

 II.

ANALYSIS

A. Legal Review of Lack of Fitness, Incompetence, and Neglect of Duties.
In the past decade, there have been just two attempted recalls of elected state officials,
both representatives: Kyle Johansen (2011) and Lindsey Holmes (2013). 1 The Attorney
General’s Office recommended that the Director of the Division of Elections deny certification
of both applications, and the Lindsey Holmes denial was litigated in superior court. The State’s
denial was upheld as proper and was not appealed.
The Lindsey Holmes Attorney General Opinion provides the State’s most recent (and
lengthy) analysis of the somewhat complicated and infrequently litigated recall law. I will not
repeat all of that here, but rather focus on the portions that matter most for purposes of the
current application. I note that because each of the allegations in this application cites three
separate and independent legal grounds for recall, this effectively gives the reviewing attorney—
and ultimately a court—up to 18 separate and independent legal grounds to evaluate as the basis
for a recall, any one of which—if sustained—would serve to certify the application.
In evaluating legal sufficiency, courts first look to the grounds of recall upon which an
application relies. As with the attempted Lindsey Holmes recall, the focus here is not factual, to
the extent there are any disputed facts. The analysis is strictly legal, because the Division
Director—who is tasked with certifying or denying the recall application—must assume all
factual allegations in a recall summary are true. 2 Review of legal sufficiency in a recall
application focuses on whether the alleged facts state a claim under a ground for recall. 3 It is for
the voters to decide whether those facts are a true basis for the claim.
1. Lack of Fitness
Courts have defined “lack of fitness” as “unsuitability for office demonstrated by specific
facts related to the recall target’s conduct in office” 4 or engaging in unlawful conduct. In
enunciating this latter standard, superior court judge Craig Stowers, now a justice on the Alaska
Supreme Court, stated in Citizens for an Ethical Government v State of Alaska 5:
if there is a statement in the form of “X is illegal” . . . those are statements of law, and
that’s appropriate for the court . . . to evaluate those and to determine whether or not
those are true and accurate statements of law. If they are not, I think, under the von

2011 Op. Alaska Att’y Gen. (Oct. 3); 2013 Op. Alaska Att’y Gen. (Dec. 3).
Meiners v. Bering Strait School District, 687 P.2d 287, 300 n. 18. (Alaska 1984).
3
2005 Inf. Op. Att’y Gen. at 11 (Sept. 7; 663-06-0036).
4
Valley Residents for a Citizen Legislature v. State of Alaska, No. 3AN-04-6827 CI at 10 (Alaska Super. Aug.
24, 2004) (order granting summary judgment).
5
No. 3AN-05-12133 CI (Alaska Super. Jan. 4, 2006) (order granting summary judgment).
1
2

 Stauffenberg case and under the Meiners case, it’s my duty to conclude that those do not
in and of themselves assert valid legal grounds and at the least those should be stricken. 6
Because it was not illegal for legislators to serve as paid consultants to politicallyinvolved corporations (the basis for the lack of fitness allegation in the above-cited case), the
application did not state a legally sufficient allegation for lack of fitness. 7 Accordingly, as to lack
of fitness, a reviewing attorney would make a recommendation of legal validity or lack thereof to
the Division Director, whose decision would be appealable to a court which would in turn
determine whether the statements were “true and accurate statements of law.”
2. Incompetence
Only once has an Alaska court reviewed the legal sufficiency of an allegation of
“incompetence” in the context of an attempt to recall a state official. In Coghill v. Rollins,8
Superior Court Judge Savell concluded that the appropriate definition of “incompetence” in this
context (the attempted recall of the Lieutenant Governor) was a “lack of ability to perform the
official’s required duties.” 9 It is worth noting that in enacting the original recall statutes, the
legislature intentionally excluded grounds such as “favoritism,” “carelessness,” “extravagance,”
“inability,” “selfishness,” and “no benefit to public,” from the four statutory grounds for recall
ultimately chosen— implying that only true and manifest malfeasance should subject a legislator
to recall. 10
3. Neglect of Duties
“Neglect of duty” has been interpreted to mean “the nonperformance of a duty of office
established by applicable law.” 11 The Valley Residents case is one of the only times, if not the
only time, a court has interpreted this provision.
B. The Foregoing Legal Standards Applied to the Application to Recall Governor
Dunleavy
Applying these legal standards to the present application, the strongest grounds for recall
are probably the failure to appoint a superior court judge within the statutorily-mandated
timeframe, the violation of APOC statutes, and the “mistaken” vetoing of Medicaid funds. But
the other allegations—violations of the Executive Branch Ethics Act and improper use of the

(Emphasis added).
Id.
8
No. 4FA-92-1728 CI (Alaska Super., Nov. 1, 1993) (order granting summary judgment in part).
9
Id.
10
See Legislative Council, Suggested “Alaska Election Code” at 66-67 (Jan. 20, 1960); 2005 Inf. Op. Att’y Gen.
at 4-5 (Sept. 7; 663-06-0036).
11
Valley Residents for a Citizen Legislature v. State of Alaska, No. 3AN-04-6827 CI at 9 (Alaska Super. Aug.
24, 2004) (order granting summary judgment).
6
7

 line-item veto—also state very strong claims for the legal violations a court would need to find in
order to uphold certification of a recall.
1. Failure to Appoint a Superior Court Judge Within the Mandated Statutory
Timeframe.
Article IV, section 5 of the Alaska Constitution provides that the “governor shall fill any
vacancy in an office of supreme court justice or superior court judge by appointing one of two or
more persons nominated by the judicial council.” 12
Alaska Statute 22.10.100(a) provides that the “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 from the judicial council, by appointing one of two or more persons
nominated by the council for each actual or impending vacancy.” 13
According to publicly available records, on February 4, 2019, the judicial council
forwarded nominations to the Palmer Superior Court to the governor for consideration in filling
two pending vacancies there. On March 21, 2019, the Governor failed to fill one of these
vacancies, instead writing a letter through his Chief of Staff complaining about the process and
quality of the nominees.
The law is clear that the governor must fill judicial vacancies within 45 days of receiving
nominations, and the facts are clear that he did not do that. This is a “nonperformance of a duty
of office established by applicable law” sufficient to establish neglect duty under current case
law. His failure to appoint a judge was also clearly unlawful, thereby establishing lack of fitness.
2. Violations of the Executive Branch Ethics Act & Alaska Public Offices
Commission (APOC) Statutes Based on Paid Electronic Advertisements and
mass mailings.
The Executive Branch Ethics Act at AS 39.52.120(b)(6) provides that 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; . . . in this paragraph, "for partisan
political purposes" (A) means having the intent to differentially benefit or harm a (i) candidate or
potential candidate for elective office; or (ii) political party or group; (B) but does not include
having the intent to benefit the public interest at large through the normal performance of official
duties.”
Thus, the deciding legal factor on this claim is whether the ads in question were for
“partisan political purposes” or, instead or additionally, whether they had “the intent to benefit
the public interest at large through the normal performance of official duties.” A reviewing
attorney or court would need to look at the specific electronic advertisements as well as the
12
13

(Emphasis added).
(Emphasis added).

 mailers, and would reasonably conclude that they were published for “partisan political
purposes” as opposed to intending to “benefit the public interest at large through the normal
performance of official duties.” It is important to note here that the use of ads such as these has
no precedent in the actions of any prior governor or administration.
Based on the above analysis, this could constitute lack of fitness and neglect of duties if a
court or reviewing attorney found that the ads actually violated the Ethics Act. There is no
evidence of a lack of ability to perform duties here sufficient to sustain an allegation of
incompetence.
Alaska’s campaign finance statutes contain numerous disclosure requirements designed
to ensure a level of transparency in political advertisements:
•

Alaska Statute 15.13.090 requires that “all communications shall be clearly
identified by the words ‘paid for by’ followed by the name and address of the
person paying for the communication.”

•

Alaska Statute 15.13.135(b)(2) requires that “[a] person who makes independent
expenditures for a mass mailing, for distribution of campaign literature of any
sort, for a television, radio, newspaper, or magazine advertisement, or any other
communication that supports or opposes a candidate for election to public office
shall place” a specific notice to voters “that it is readily and easily discernible,”
indicating that the communication is “not authorized, paid for, or approved by the
candidate.”

•

Alaska Statute 15.13.050 requires that “[b]efore making an expenditure in support
of or opposition to a candidate . . . each person other than an individual shall
register” with the Alaska Public Offices Commission (APOC) on forms provided
by APOC.

•

Finally, AS 15.13.145, with limited exceptions not applicable here, prohibits the
state from using state money to “influence the outcome of the election of a
candidate to state or municipal office.”

Alaska campaign finance law is very straightforward about what is required of political
advertisements. The Governor failed to comply with any or all of these requirements in the
electronic advertisements and mass mailings. He therefore violated the law. If a reviewing
attorney or court agrees with this conclusion, this would be sufficient legal grounds for lack of
fitness and neglect of duties.
3. Unconstitutional Use of the Line-Item Veto
The Governor publicly stated, in writing, that he was vetoing court system funding
because of the Alaska Supreme Court’s prior decisions regarding public funding of abortions, in

 the amount of those procedures’ cost to the State: “The Legislative and Executive Branch are
opposed to State funded elective abortions; the only branch of government that insists on State
funded elected abortions is the Supreme Court. The annual cost of elective abortions is reflected
by this reduction.”
Shortly thereafter, the American Civil Liberties Union of Alaska (ACLU) filed a lawsuit
challenging the constitutionality of these actions, 14 and the two counts in that complaint offer a
good legal framework for a recall analysis.
The ACLU complaint alleges that the Governor violated the judicial doctrine of
separation of powers because the “court system veto was made in direct retaliation for the Alaska
Supreme Court’s decision in State v. Planned Parenthood of the Great Northwest, 436 P.3d 984
(Alaska 2019)” and thus “violates the Alaska Constitution and the separation of powers because
it retaliates against and seeks to punish the court system for exercising its judicial powers and
seeks to undermine the independence of the judiciary.”
That complaint also alleges that this action violates Article II, sec. 15 of the Alaska
Constitution’s limits on gubernatorial veto power, because “the authority to strike or reduce
items does not include the authority to reallocate appropriations by the Legislature,” and the
“Governor is without authority to take any veto action not specifically granted to him in the
Constitution.” Accordingly, the court system veto “violates Article II, sec. 15 of the Alaska
Constitution because it is an impermissible reallocation of an appropriation.”
These are substantive claims that are extremely well-grounded in the constitution and
case law, and a court is far more likely than not to agree that the Governor violated the
Constitution in making this veto. Accordingly, and for the same reasons stated above, this action
states a legal ground for recall under the “neglect of duties” and “lack of fitness” analysis.
4. Mistaken Veto of Medicaid Funds
The application alleges that Governor Dunleavy acted incompetently when he mistakenly
vetoed $18 million more than he told the legislature in official communications that he intended
to strike. Uncorrected, the error would cause the state to lose over $40 million in matching
federal Medicaid funds. Upon information and belief, there exists official communications in
which the Governor’s Office admits that this was an “error.” A “mistake” of this magnitude and
impact would certainly imply a “lack of ability to perform the official’s required duties”
sufficient for a reviewing attorney or court to find incompetence.

14

Relief).

ACLU v. Dunleavy, 3AN-19-08349 CI (Alaska Super. Jul. 17, 2019) (Complaint for Declaratory and Injunctive

 III.

CONCLUSION

There is no guarantee what a reviewing attorney or a court would do or what conclusions
they would reach. However, it is our collective opinion that the allegations in this application
accurately state at least one—and likely multiple—legally sufficient grounds to certify a recall of
the governor. On the basis of the proposed grounds, we strongly believe that a court will
ultimately certify a valid basis to appear on the ballot.