Department of Law
OFFICE OF THE ATTORNEY GENERAL
1031 West Fourth Avenue, Suite 200
Anchorage, AK 99501
Main: (907) 269-5100
Fax: (907) 269-5110

November 4, 2019
Gail Fenumiai
Director of Elections
Alaska Division of Elections
P.O. Box 110017
Juneau, Alaska 99811-0017
Re:

Review of Application for Recall of Governor Michael J. Dunleavy
AGO No. 2019200686

Dear Director Fenumiai:
You have asked for the Department of Law’s opinion regarding the application for
recall of Governor Dunleavy that was received by your office on September 5, 2019.
Alaska Statute 15.45.540 requires the director of the Division of Elections (Division) to
review the application and either certify it or notify the recall committee of the grounds
of refusal.
I.

Summary of Opinion

The application complies with the technical requirements of the recall statutes.1
The timely filed application names an elected official subject to recall and is
accompanied by the required payment. But, because the statement of grounds for recall
fails to satisfy the legal standards required for a recall, we recommend that certification
of the application be denied.

1

Alaska’s recall process at the state level contains two stages: (1) the application
process under AS 15.45.480–.550, and (2) the petition process under AS 15.45.560–.630.
The recall process is generally referred to in terms of a “petition” for recall. Any
references to “petition” in this opinion are the same as “application” for the purposes of
reviewing the application and the statement of grounds.

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy
II.

November 4, 2019
Page 2 of 25

Background

Governor Michael J. Dunleavy (“the Governor”) was elected on
November 6, 2018. On September 5, 2019, sponsors filed an application to recall the
Governor. The application provides the following 158-word alleged grounds for recall:2
Neglect of Duties, Incompetence, and/or Lack of Fitness, for the
following actions:
1.
Governor Dunleavy violated Alaska law by refusing to
appoint a judge to the Palmer Superior Court within 45 days of
receiving nominations.
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.
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 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.
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).
The application was accompanied by: (1) a $100 deposit; (2) a statement that the
sponsors are qualified voters; (3) a designation of a recall committee of three sponsors
2

This is an approximate count, not including subsection letters such as (a) or (b),
and with statutory citations treated as one word (i.e., “AS #”). If this references section is
included in the word count, the statement of grounds would total 189 words. Either way,
it is under 200 words.

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 3 of 25

who shall represent all persons who signed the application; (4) signatures of at least 100
qualified voters who subscribed to the application as sponsors; and (5) signatures and
addresses of allegedly qualified voters equal to more than 10 percent of those who voted
in the last general election.3 The statement of grounds for recall also references
approximately 149 pages of additional material, including an Office of Management and
Budget (“OMB”) Change Record Detail consisting of 144 pages and a Legislative
Division of Legal and Research Services Memorandum consisting of five pages. As
discussed further below, because this material takes the statement of grounds far beyond
the 200-word limit, it should not be considered for purposes of determining whether the
grounds are factually and legally sufficient.
III.

Applicable law

The law of recall in Alaska is found in (1) the Alaska Constitution, (2) Alaska
statutes implementing recall and establishing the procedures and grounds for recall, and
(3) court decisions from the Alaska Supreme Court. Decisions from the Alaska Superior
Court are persuasive but not controlling authority.4 Additionally, prior opinions from the
Department of Law and court decisions from other states can be helpful in interpreting
Alaska’s recall statutes.
A.

The Alaska Constitution

Article XI, section 8 of the Alaska Constitution permits recall of all elected public
officials in Alaska except judicial officers. The constitution does not set forth the
procedures or grounds for recall, but instead empowers the legislature to establish them.
B.

Alaska statutes

By statute, an application for recall must meet the following requirements:


3

It must name a public official subject to recall: governor, lieutenant
governor or state legislator. AS 15.45.470.

The Division of Elections reviewed the signatures and found that 46,405 of the
signatures submitted were legible signatures that met the requirements of
AS 15.45.500(3). The Department of Law has no role in the signature review process.
4
Among the three superior court decisions on state recall applications, we have
given greater weight to the most recent case, Judge Stowers’ decision in Citizens for an
Ethical Government v. State, No. 3AN-05-12133CI (Alaska Super., Jan. 4, 2006)
(Stowers, J.) (oral ruling on summary judgment), because Justice Stowers is now a
member of the Alaska Supreme Court. For your convenience, a copy of the official
transcript of Judge Stowers’ decision is attached to this Opinion letter.

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 4 of 25



It must be accompanied by a deposit of $100. AS 15.45.480.



It must be filed after the first 120 days in office and no later than 180
days before the last day in office of the official subject to recall.
AS 15.45.490; AS 15.45.550(2).



It must be in the proper form, which requires:
1.

the name and office of the person to be recalled;

2.

the grounds for recall described “in particular” in not more
than 200 words;

3.

a statement that the sponsors are qualified voters who signed
the application with the statement of grounds for recall
attached;

4.

the designation of a recall committee of three sponsors who
represent all the sponsors and subscribers;

5.

the signatures of at least 100 qualified voters who subscribe
to the application as sponsors for purposes of circulation; and

6.

the signatures and addresses of qualified voters equal in
number to 10 percent of those who voted in the preceding
general election.

AS 15.45.500.


It must adequately articulate at least one of the four legal grounds for
recall:
1. lack of fitness;
2. incompetence;
3. neglect of duties; or
4. corruption.
AS 15.45.510.

As the Director of the Division, you are tasked with reviewing the application and you
must either certify it, if it meets the technical and substantive requirements, or notify the

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 5 of 25

recall committee of the grounds for refusal to certify.5 Although the statutes do not
specify a timeframe for completing your review, you requested our legal review be
completed within sixty days, which falls on November 4, 2019.
IV.

Standard of review

No decision of the Alaska Supreme Court has addressed the statutes governing
recall of a state level official. The Supreme Court has, however, twice addressed the
recall statutes for local officials found in AS 29.26, which differ from the grounds for
recall of a state elected official.6 Superior court judges have, nonetheless, treated the
Alaska Supreme Court’s recall decisions regarding local officials to be controlling for
recall applications of statewide officials.7
Some general rules of review are noteworthy at the outset. The reviewer8 of a
recall application is to “avoid wrapping the recall process in such a tight straightjacket
that a legally sufficient recall petition could be prepared only by an attorney who is a
specialist in election law matters.”9 The statement of grounds contained within the
application must “give the officeholder a fair opportunity to defend his conduct in a
rebuttal limited to 200 words.”10 And the application must stand or fall based upon the
words written by its sponsors—the reviewer cannot “rewrite the allegations of the
petition in different language.”11 The reviewer is to “delete severable individual charges
from a recall petition if those charges do not come within the grounds specified by
statute.”12 This latter point is important because “[t]he right to recall . . . officials in

5

AS 15.45.540.
See Meiners v. Bering Strait Sch. Dist., 687 P.2d 287 (Alaska 1984); von
Stauffenberg v. The Committee for an Honest and Ethical Sch. Bd., 903 P.2d 1055
(Alaska 1995).
7
See Coghill v. Rollins, No. 4FA-92-1728CI (Alaska Super., 14, 1993) (Savell, J.);
Valley Residents for a Citizen Legislature v. State, No. 3AN-04-6827CI (Alaska Super.,
Aug. 24, 2004) (Gleason, J.); Citizens, No. 3AN-05-12133CI (Stowers, J.).
8
We intend the word “reviewer” to refer to both you as the Director of the Division
of Elections and the Department of Law as your legal advisor.
9
Meiners, 687 P.2d at 301.
10
Id. at 302.
11
Id.
12
Id. at 303.
6

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 6 of 25

Alaska is . . . limited to recall for cause”—i.e., absent “cause” (legal grounds for recall),
there can be no recall.13
The grounds for recall in the application must be both factually and legally
sufficient.14 The reviewer is to ensure that only factually and legally sufficient charges go
to the voters.15 The reviewer should examine a recall application similar to how a court
reviews a motion to dismiss a complaint for failure to state a claim.16 Applying this
standard, the reviewer should take the factual allegations as true.17 The question for the
reviewer is whether the facts, taken as true, constitute a prima facie showing of the
grounds for recall. We discuss the standards for factual and legal sufficiency in more
detail in the following sections.
A.

Factual sufficiency

The factual allegations of an application must describe the conduct that constitutes
the grounds for recall “in particular.”18 The reviewer of an application is “required to
make at least a threshold determination as to whether what has been alleged is factually
specific enough.”19 The purpose of the particularity requirement is to protect both the
elected official and voters.20 Factual allegations must fairly inform the electorate of the
charges and allow the targeted official a reasonable opportunity to rebut the charges.21 As
the Alaska Supreme Court explained in von Stauffenberg and Meiners, “[t]he purpose of
the requirement of particularity is to give the officeholder a fair opportunity to defend his

von Stauffenberg, 903 P.2d at 1059; accord Meiners, 687 P.2d at 295; In re Recall
of Reed, 124 P.3d 279, 281 (Wash. 2005) (“public officials are protected from petitions
based on frivolous charges.”); In re Recall of Call, 749 P.2d 674, 676 (Wash. 1988)
(“[t]he right to recall elected officials is limited to recall for cause so as to free public
officials from the harassment of recall elections grounded on frivolous charges or mere
insinuations.”).
14
See von Stauffenberg, 903 P.2d at 1059–60; see also Reed, 124 P.3d at 281; In re
Recall of Lee, 859 P.2d 1244, 1247 (Wash. 1993).
15
Reed, 124 P.3d at 281.
16
von Stauffenberg, 903 P.2d at 1059.
17
Id.
18
AS 15.45.500(2); see also, e.g., von Stauffenberg, 903 P.2d at 1060; Citizens,
No. 3AN-05-12133CI at 4–5.
19
Citizens, No. 3AN-05-12133CI at 12.
20
Meiners, 687 P.2d at 302.
21
von Stauffenberg, 903 P.2d at 1060; see also 2004 Op. Att’y Gen. (Apr. 8, 2004)
at 9 and n. 43.
13

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 7 of 25

conduct in a rebuttal limited to 200 words.”22 Allegations stated in overly general terms
would leave the elected official incapable of defending himself and would lead some
electors to sign a recall petition “with no idea of what words or acts of the official might
have precipitated the recall effort.”23 The factual allegations of a recall application must
also specify some detail as to how the office holder personally committed or was
personally responsible for the alleged conduct that constitutes the ground for recall.24
“[T]here is ‘no authority for the proposition that a public official may be recalled for the
act of a subordinate done without the official’s knowledge or direction.’”25
We acknowledge that recall statutes are to be broadly construed such that
substantial compliance by the sponsors with the established procedures is sufficient to
meet the requirements. But if the statutes and the rulings of “the Supreme Court in
Meiners and von Stauffenberg mean anything . . . a court is required to make at least a
threshold determination as to whether what has been alleged is factually specific
enough.”26 In the superior court case of Citizens for an Ethical Government v. State,
Judge Stowers warned that “[r]ecall advocates must allege more than mere 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 ground in and of themselves.”27 Disagreement with an elected
official’s policies is not a valid basis for recall.28
The reviewer may consider only the 200 or fewer words in the statement of
grounds when considering a recall application. The sponsors of an application are not
permitted to skirt the statutory 200-word limit by referencing or attaching additional

903 P.2d at 1060 (quoting Meiners, 687 P.2d at 302).
23
Steadman v. Halland, 641 P.2d 448, 453 (Mont. 1982).
24
See, e.g., Coghill, No. 4FA-92-1728CI at 23–24 (Judge Savell found that an
allegation to the effect that Lieutenant Governor Coghill had made unfounded public
accusations of criminal activity of recall staff and had used his office to intimidate
individuals who had challenged his nomination and election, was both factually and
legally insufficient because it contained no details about the accusations and did not
describe how the Lieutenant Governor had used his office to intimidate others).
25
Reed, 124 P.3d at 281–82 (quoting In re Recall of Morrisette, 756 P.2d 1318, 1320
(Wash. 1988)).
26
Citizens, No. 3AN-05-12133CI at 12.
27
Citizens, No. 3AN-05-12133CI at 14; see also Meiners, 687 P.2d at 294; Cole v.
Webster, 692 P.2d 799, 803 (Wash. 1984).
28
Meiners, 687 P.2d at 294; Citizens, No. 3AN-05-12133CI at 14; Cole, 692 P.2d at
803.
22

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 8 of 25

documents and materials to the application.29 Judge Stowers declined to review additional
materials that were submitted to him and specifically limited his review to the precise
words of the statement of grounds for recall contained within the recall application.30 The
200-word limit for the statement of grounds must be strictly enforced because, in the
event of a recall election, the elected official is limited to only 200 words in the rebuttal
statement that is posted in polling places.31
B.

Legal sufficiency

Unlike the deference given to the truth of factual allegations, the reviewer of a
recall application must review legal allegations or legal conclusions de novo for their
consistency with law. No deference is given to the sponsors’ legal conclusions.32 This
applies to (1) allegations that some action—the facts of which the reviewer assumes to be
true—constitutes one of the statutory grounds for recall; and (2) allegations that some
action that is foundational to the sponsor’s claim is unlawful or has specific legal
consequence.33 Allegations that present mixed questions of law and fact are to be
reviewed de novo for the truth or correctness of the legal assertions of the allegation. As
Judge Stowers stated, “[t]o the extent that there are mixed questions of fact and law, A
did B, which is illegal, 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.”34 In order to define the
grounds for recall, we must first review the history of the constitutional and statutory
recall provisions.
The passage of Alaska’s first recall statute followed close on the heels of the
Alaska Constitutional Convention and was informed by the delegates’ discussion of
recall. In 1959, the newly created Alaska Legislature directed the Alaska Legislative
Citizens, No. 3AN-05-12133CI at 4–5.
Id. at 4–5; see also Steadman, 641 P.2d at 453 (explaining that the Montana
Supreme Court would not consider a “Reasons for Recall” document that was attached to
the petition).
31
AS 15.45.680.
32
See von Stauffenberg, 903 P.2d at 1059-60 and n.12 (stating that the Court’s role is
to “determine whether doing [an alleged action] was a violation of Alaska law”);
Meiners, 687 P.2d at 301 (“If the petition alleges violation of totally non-existent laws,
then it would not allege failure to perform prescribed duties.”); Citizens, No. 3AN-0512133CI at 10–11 (finding that allegations to the effect that a state senator had engaged
in corruption and had demonstrated lack of fitness by accepting money from a politically
involved entity were legally insufficient because it is not illegal to serve as a paid
consultant to politically involved corporations).
33
See Meiners, 687 P.2d at 301, 303.
34
Citizens, No. 3AN-05-12133CI at 11.
29
30

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 9 of 25

Council to prepare an election code along with a report for introduction in the 1960
legislative session.35 As requested, Legislative Council prepared a comprehensive
election code, and included sections implementing the constitutional provision on
recall.36 Those initial legislative actions indicate that the legislature intended the grounds
for recall to be considered serious substantive actions of malfeasance and nonfeasance
rather than technical or procedural matters. This statutory approach implemented the
intent of the Constitutional Convention delegates.
The first draft of the constitutional recall provision that the delegates evaluated
read as follows:
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.37
Amendments to this proposal were taken up by the convention beginning on
January 4, 1956. Delegate Hellenthal offered the first amendment to the section, seeking
to strike the words “involving moral turpitude.”38 He contended that any crime should be
sufficient grounds for recall.39 During the debate on this amendment, Delegate
McCutcheon contended that the amendment had not gone far enough and that no grounds
should be specified for a recall.40
As the debate proceeded, however, it was clear that the majority of the delegates
did not agree with the views of Delegates Hellenthal and McCutcheon. Delegate Rivers
did not want to make lesser crimes grounds for recall.41 Delegate Johnson thought “there
ought to be some protection for public officials.”42 Delegate Hellenthal’s amendment to
delete the words “involving moral turpitude” failed.43

See Legislative Council, Suggested Alaska Election Code (Jan. 20, 1960) at 1.
36
See 1st Legis., 2nd Sess., HB 252.
37
Constitutional Convention Committee Proposal No. 3, Report of the Committee on
Direct Legislation, Amendment and Revision (December 9, 1955) at 3.
38
2 Proceedings of the Alaska Constitutional Convention at 1207.
39
Id. at 1207–08.
40
Id.
41
Id. at 1210–1212.
42
Id. at 1211.
43
Id. at 1212.
35

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 10 of 25

The next amendment, offered by Delegate Fischer, sought to strike the specified
grounds from the recall provision.44 The question was then raised whether constitutional
silence on the grounds for recall would permit the legislature to prescribe grounds.
Delegate Rivers insisted that grounds be prescribed either in the constitution or in
statute.45 The convention approved the amendment striking the specified grounds from
the Constitution’s text.46
The debate then turned back to the issue of whether the legislature should have the
power to specify grounds for recall. Delegate White offered an amendment providing that
“[g]rounds for recall shall be set forth in a recall petition.”47 Delegate White explained
that this would remove the legislature’s power to prescribe specific grounds for recall.48
In response, Delegate Rivers reiterated his view that the legislature should prescribe the
grounds for recall.49 Delegate Hurley joined Delegate Rivers and expressed his concern
that if no grounds for recall were specified,
[I]t does create a nuisance value to which public officials should not
be subjected. I recognize that they should be subject to recall, but I
think that the grounds should be sincere and they should be. 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 community.50
Delegate White’s amendment—to simply have the grounds for recall stated in a
recall petition—failed.51 The convention then took up an amendment from Delegate
Rivers that required the legislature to specify grounds for recall. Without further debate,
the convention approved the amendment, with a vote of 39 to 11.52
In summary, the convention had serious concerns with the pure “political” recall
model that permits the recall of an elected official for any reason or no reason.
44
45
46
47
48
49
50
51
52

Id. at 1213–14.
Id. at 1215.
Id. at 1222.
Id. at 1237.
Id.
Id. at 1238.
Id. at 1238–39.
Id. at 1239.
Id. at 1240.

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 11 of 25

Consequently, the convention soundly rejected this model in favor of requiring the
legislature to specify the grounds for recall, creating a threshold that must be met to
justify allowing a recall petition to move forward. The delegates supported the idea that
grounds for recall should be substantive, not just technical or procedural.53 And the
legislature implemented the delegates’ intent by enacting substantive grounds for recall.
The specific grounds that the legislature ultimately enacted were selected from a
list of grounds set forth in a Library of Congress reference book on state government.54
The reference book provided a lengthy list of bases for recall that had been used to that
date: “Among the charges noted are unfitness, favoritism, carelessness, extravagance,
incompetence, inability, no benefit to public, selfishness, neglect of duties, and
corruption.”55 Notably, the legislative council drafters did not select the entire list.
Instead, they picked only four of the grounds mentioned: lack of fitness, incompetence,
neglect of duty, and corruption. The drafters’ decision to not include lesser or more
subjective grounds such as “no benefit to the public,” “carelessness,” and “selfishness” is
consistent with the Constitutional Convention delegates’ desire to provide at least “some
protection for public officials” from recall on “nuisance” and “petty grounds.”56
With this background, we consider the three grounds alleged here—neglect of
duty, incompetence, and lack of fitness—and provide the standard for evaluating whether
the facts, if taken as true, make a prima facie showing of the grounds alleged.
1.

Neglect of duty means substantial noncompliance with one or
more substantive duties of office.

The term “neglect of duty” is not defined in the Alaska recall statutes, and the
Alaska Supreme Court has never defined this term in a recall context. Both Meiners and
von Stauffenberg addressed the local government basis for recall—which is “failure to
perform duties”—and found that discretionary uses of power are not mandatory duties

53

2 Proceedings at 1238–39.
Legislative Council, Suggested Alaska Election Code (Jan. 20, 1960) at 67 (citing
W. Brooke Graves, American State Government 151 (ed. Heath 1953)).
55
Graves, American State Government 151.
56
2 Proceedings at 1211, 1238–39. See also Meiners, 687 P.2d at 295; von
Stauffenberg, 903 P.2d at 1059 & n. 11 (limiting recall to Alaska to recall for cause, “so
as to free public officials from the harassment of recall elections grounded on frivolous
charges or mere insinuations”).
54

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 12 of 25

and therefore not grounds for recall.57 As stated above, mere policy disagreements are
also expressly rejected as grounds for recall.58 Although local official recall cases are
helpful in understanding the court’s approach, the legislature chose “failure to perform
duties” as a ground for local recall and “neglect of duty” as a ground for state recall. The
legislature’s use of different terms suggests that the grounds have different meanings.59
“Neglect of duty” requires a higher threshold burden than mere “failure to perform
duties”; the former requires a showing of neglect while the latter requires a showing that
a duty was affirmatively and intentionally not performed.
Neglect of duty appears to be similar to the concept of “nonfeasance” and
encompasses serious and repeated failures to perform substantive essential duties. For
example, nonfeasance is defined by Minnesota as “the intentional, repeated failure of a
state officer . . . to perform specific acts that are required duties of the officer.”60
Washington defines the related concept of “violation of the oath of office” as “the willful
neglect or failure by an elective public officer to perform faithfully a duty imposed by
law.”61 Under Virginia’s law, the conduct must have “a material adverse effect upon the
conduct of the office” to amount to a neglect of duty.62 Virginia’s case law suggests that
neglect of duty requires an intentional act, and that an honest mistake about which law
applies and delay in evaluating the law cannot substantiate a claim for neglect of duty.63
In Alaska, courts apply a substantial compliance analysis to post-election
challenges, an approach that provides guidance on how to apply the neglect of duty
standard in the recall context. The substantial compliance standard is “necessary to

von Stauffenberg, 903 P.2d at 1060; see also Meiners, 687 P.2d at 300 (finding
that the board’s duty to employ and also control a superintendent was not discretionary
but a requisite duty of the board, so that facts alleging a failure to control him were
sufficient to demonstrate the board’s failure to perform the prescribed duty to employ a
superintendent).
58
Meiners, 687 P.2d at 294; Citizens, No. 3AN-05-12133CI at 14; Cole, 692 P.2d at
803.
59
See Alaska Spine Ctr., LLC v. Mat-Su Valley Med. Ctr., LLC, 440 P.3d 176, 182
(Alaska 2019) (assuming if legislature meant the same type of restriction in both
subsections then it would have used the same language).
60
MN ST § 211C.01(2); In re Proposed Petition to Recall Hatch, 628 N.W.2d 125,
128 (Minn. 2001).
61
Chandler v. Otto, 693 P.2d 71, 73–74 (Wash. 1984).
62
VA. Code 24.2-233. Virginia has a removal process like recall that similarly
begins with a petition, but removal is decided in a court proceeding.
63
See Warren v. Commonwealth, 118 S.E.2d 125, 126 (Va. 1923).
57

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 13 of 25

distinguish trivial from non-trivial errors and omissions.”64 The Alaska Supreme Court
holds that “rigidly applying a forfeiture [of election] standard for inconsequential
violations is inconsistent with the presumptive validity of election results.”65 A consistent
theme for election contests is that petitioners have a dual burden, to show malconduct—
defined in Hammond v. Hickel as a significant deviation from statutory or constitutional
norms—that could have affected the election outcome.66 First, conduct is not malconduct
where the alleged offenders have complied with the purpose of a statute.67 Second, the
cases also distinguish between duties established in mandatory versus directory statutes.
Mandatory statutes go to the essence of why the election law was created.68 Directory
statutes provide procedural guidance.69 For conduct to amount to a violation, it must
violate the purpose of a mandatory statute to a degree significant enough to have affected
the outcome of an election.70
The Alaska Supreme Court’s approach in these election cases is reminiscent of the
discussion on recall amongst the Constitutional Convention delegates, which provided
the foundation for the statute passed by the Alaska Legislature just a few years later. The
delegates were concerned that recall could be used by an opposing political faction to
harass an elected official with an application for recall based on technical or procedural
grounds—or as one delegate referred to them, “petty grounds.”71 Neglect of duty was
meant to be more than just an unintentional error or failure to comply with a directory,
rather than mandatory, duty. Therefore, the duty alleged to have been neglected needs to
be substantive, and the facts need to show that the official affirmatively and intentionally
failed to substantially comply with that substantive duty in order to meet the recall
ground of neglect of duty.

Grimm v. Wagoner, 77 P.3d 423, 429 (Alaska 2003).
Id. at 432. Substantial compliance analysis appears appropriate in a recall context
because, just as in the context of an election challenge, a recall is an attempt to undo the
result of an election.
66
Hammond v. Hickel, 588 P.2d 256, 258 (Alaska 1978).
67
Dansereau v. Ulmer, 903 P.2d 555, 567–68 (Alaska 1995) (“the apparent purpose
of AS 15.56.010—to promote an informed electorate and to allow voters to evaluate the
solicitations they receive—was substantially met.”); Hammond, 588 P.2d at 266, 269
(Alaska 1978).
64
65

Finkelstein v. Stout, 774 P.2d 786, 791 (Alaska 1989), overturned on other
grounds by Nageak v. Mallott, 426 P.3d 930 (Alaska 2018).
69
Id. at 788.
70
Hammond, 588 P.2d at 264.
71
2 Proceedings at 1238–39.
68

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy
2.

November 4, 2019
Page 14 of 25

Incompetence means a substantial lack of sufficient knowledge,
skills, or professional judgment required to perform substantive
duties of the office.

Incompetence has likewise not been defined by the legislature or interpreted by the
Alaska Supreme Court. In a superior court case, Judge Savell determined that the
definition of incompetence “must relate to a lack of ability to perform the official’s
required duties.”72 Black’s Law Dictionary provides a broad definition: “the quality,
state, or condition of being unable or unqualified to do something.”73
Alaska’s Business and Professions Code offers definitions of professional
incompetence that could be helpful in defining incompetence for purposes of recall.74 For
example, professional incompetence of a medical licensee is defined by regulation as
“lacking sufficient knowledge, skills, or professional judgment . . . to a degree likely to
endanger the health of his or her patients.”75 Likewise, a nurse’s license may be
suspended up to two years for conduct found to be “professionally incompetent, if the
incompetence results in the public health, safety, or welfare being placed at risk.” 76
Whereas incompetence of a doctor or a nurse must relate to endangering patients or the
health of the public, incompetence of an elected official must relate to performing the
substantive duties of the office. Considering the discussion of the constitutional delegates
and these other statutory definitions of professional “incompetence,” an elected official
will meet the ground for incompetence only if the alleged facts show he lacks sufficient
knowledge, skill or professional judgment required to perform substantive duties of the
office. It is clear that the term “incompetence” cannot be defined in such a way that it can
be used as a proxy for mere policy disagreements—this would permit a result that the
Constitutional Convention delegates, the legislature, the Alaska Supreme Court and other
state courts have rejected.77
Coghill, 4FA-92-1728CI at 21.
73
Black’s Law Dictionary (11th ed. 2019).
74
See, e.g. AS 08.68.850; AS 08.64.302; 12 AAC 36.330 (as interpreted by Halter v.
State, Dep’t of Commerce & Economic Dev., Med. Bd., 990 P.2d 1035, 1037 (Alaska
1999) (where the Supreme Court upheld the definition as not unconstitutionally vague as
applied in sanctioning a medical professional.)); AS 08.64.326; AS 08.64.130;
12 AAC 44.720; AS 14.20.170. See also Lee Houston & Assocs., Ltd. v. Racine, 806 P.2d
848, 853 (Alaska 1991); Bibo v. Jeffrey's Restaurant, 770 P.2d 290 (Alaska 1989); Van
Horn Lodge, Inc. v. White, 627 P.2d 641, 643 (Alaska 1981).
75
12 AAC 40.970.
76
12 AAC 44.720(b)(3).
77
2 Proceedings at 1207-40; Meiners, 687 P.2d at 294; Citizens, No. 3AN-05-12133
CI at 14; Cole, 692 P.2d at 803.
72

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy
3.

November 4, 2019
Page 15 of 25

Lack of fitness means substantial physical or mental inability to
perform substantive duties of the office.

Prior decisions by the superior court applied vague definitions for lack of fitness
that allow sponsors wide latitude in defining it, which is inconsistent with the history of
the Constitutional Convention and the recall statutes.78 Because these prior decisions are
not binding and the definitions are unworkable for purposes of having a substantive
threshold, we suggest looking to other statutory definitions when defining “lack of
fitness.”
In Alaska’s Business & Professions Code, “fitness” is determined by mental or
physical ability.79 For example, pilots may be subjected to mental or physical exams to
determine their fitness to perform the duties of a pilot,80 nurses to determine their fitness
to perform the professional duties of a nurse,81 and pharmacists to determine their
fitness.82 Social workers must be considered “fit to practice social work as determined by
the board” to obtain a certificate of fitness for their licensure.83 Also, pawnbrokers must
provide proof they are fit to engage in business as pawnbrokers in order to obtain their
requisite licensure.84 Physical or mental disability establishes unfitness as a ground for
disciplinary action against a medical licensee.85 The code also requires a certificate of

In Coghill, Judge Savell used the Black’s Law dictionary definition of “unfitness”
available at the time, which reads: “unsuitable; incompetent; not adapted or qualified for
a particular use or service; having no fitness.” Coghill, No. 4FA-92-1728CI at 23. In
Valley Residents, Judge Gleason adopted the Division of Election’s definition of lack of
fitness: “unsuitability for office demonstrated by specific facts related to the recall
target’s conduct in office.” Valley Residents, No.3AN-04-6827CI at 10.
79
There are also determinations of fitness based on written exams, such as exams
required for legal or medical professionals, but these would not apply to determination of
the fitness of an elected official.
80
AS 08.62.040.
81
12 AAC 44.760.
82
12 AAC 52.940.
83
AS 08.95.110(a)(4) (fitness is assessed along with professional standing, but
separately from academic degree(s), experience, and moral character, which are
addressed in separate subsections).
84
AS 08.76.110 (the other qualifications are good character, requisite experience,
filing the appropriate application, and paying the required fee).
85
AS 08.64.326(8)(C) (“has demonstrated . . . unfitness because of physical or
mental disability”).
78

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 16 of 25

fitness that certifies only physical fitness for explosives handlers (in construction and
excavation)86 and for marine pilots.87
Considering these statutory approaches to determining fitness as well as the
discussion of the constitutional delegates, “lack of fitness” on the part of an elected
official should relate to the substantive duties that need to be carried out and a showing of
a substantial lack of physical or mental ability to perform those duties. In other words,
lack of fitness means a substantial physical or mental inability to perform the substantive
duties of the office. Any lesser definition of this phrase would subject elected officials to
recall for mere policy choices, a result that was rejected by the constitutional delegates.88
V.

Analysis
A.

The application meets the technical requirements.

The application was accompanied by a $100 deposit as required by AS 15.45.480.
The application sets forth the name and office of the person to be recalled as required by
AS 15.45.500(1). The application contains a statement of grounds for recall that, on its
face, is not more than 200 words as required by AS 15.45.500(2).
Although the statement of grounds contains a reference section, we do not
consider the referenced materials because they would expand the statement to over 149
pages and substantially beyond 200 words. Like Judge Stowers in Citizens, we limit our
review to the four corners of the application.89 This is also the approach the Alaska
Supreme Court endorsed in von Stauffenberg, where it mentioned external information in
its recitation of the case facts and proceedings, but limited its findings to information
alleged within the statement of grounds.90
The application designated a recall committee of three sponsors who shall
represent all sponsors and subscribers in matters relating to the recall as required by
AS 15.45.500(4). The application contained signatures of at least 100 qualified voters
who subscribe to the application as sponsors for purposes of circulation as required by
AS 15.45.500(3).

86

AS 08.52.020.
87
12 AAC 56.080.
88
Meiners, 687 P.2d at 294 (citing to 2 Proceedings at 1237–39); Citizens,
No. 3AN-05-12133CI at 14; Cole, 692 P.2d at 803 (Wash. 1984).
89
90

Citizens, No. 3AN-05-12133CI at 17.
von Stauffenberg, at 1056–57.

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 17 of 25

The application contains the signatures and addresses of qualified voters equal in
number to 10 percent of those who voted in the preceding general election for governor
as required by AS 15.45.500(3). The valid signature pages contained a statement that the
sponsors are qualified voters who signed the application, and the statement of grounds for
recall is attached as required by AS 15.45.500(3). The statement of grounds for recall was
also printed on the back of all the qualified signature sheets.91
B.

The statement of grounds for recall is factually and legally deficient.

The reviewer must determine whether the statement of grounds for recall is
factually sufficient, that is, whether the factual statements are sufficiently particular.
Next, the reviewer must determine whether the statement of grounds is legally sufficient,
that is, assuming the alleged facts to be true, whether it states a valid legal claim for one
of the specified grounds for recall. For the reasons discussed below, we conclude that
three of the four allegations listed in the statement fail to sufficiently allege the facts and
that all four allegations fail to meet any of the listed grounds for recall—neglect of duty,
incompetence, or lack of fitness.
1.

The allegation that Governor Dunleavy refused to appoint a
judge to the Palmer Superior Court within forty-five days
merely alleges a procedural violation and fails to show a
violation of any substantive duty.

The first allegation appears to be factually sufficient as there is no dispute that
Governor Dunleavy did not appoint a judge to the Palmer Superior Court within fortyfive days as provided by Alaska statute. But this does not make a prima facie showing of
any of the grounds for recall.
The Alaska Constitution directs the governor to “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.”92 The constitution does not impose a time deadline
on the governor. Instead, it refers only to “filling any vacancy.” The only fact included in
the statement of grounds is that the governor refused to appoint within the statutory
timeline of forty-five days after receiving the nominations. The statement does not
include any facts indicating the governor never appointed a judge, i.e., failed to fill a
91

There were twenty-three signature pages that failed to include the statement of
grounds on the back of the signature page. The Division of Elections did not accept the
signatures on these pages for failure to attach the statement of grounds as required by
AS 15.45.500(3). The remainder of the qualified signature pages contained enough
signatures of qualified voters to surpass the minimum required qualified voter signatures,
according to the Division of Elections’ review.
92
Alaska Const. art. IV, § 5.

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 18 of 25

vacancy. And, there is no dispute that the governor did appoint a judge shortly after the
forty-five day period and before any vacancy occurred.
The facts also fail to allege that the judicial position was vacant, or that the failure
to appoint within the forty-five day window created an unfilled vacancy, strained court
resources or created an inability to timely process cases. It was widely reported that the
judicial position was not yet vacant at the time of the governor’s appointment.93 The
governor’s substantive duty under the Alaska Constitution is to fill a vacancy, not to
make an appointment within a specific timeframe. Absent any other supportive facts,
merely missing a statutory timeline that is not included in the substantive constitutional
duty to appoint a judge does not amount to substantial noncompliance with the
constitutional duty or any other legal ground for recall.
Legislative history and practice also indicate that the statutory timeframe alone
does not amount to a substantive duty.94 The judicial nomination and appointment statute
has been amended twice to permit the Alaska Judicial Council (AJC) more time to
nominate candidates. The AJC now has ninety days (as opposed to its original thirty
days) after a seat is vacated to send at least two nominees to the governor so that he has a

93

Judge Vanessa White’s seat on the Palmer Superior Court was not scheduled to
become vacant until late April 2019. In February 2019, the Governor attempted more
than once to obtain additional information from the Alaska Judicial Council to ensure the
nominating process had properly included the qualified candidates according to the meritbased selection process the constitution requires. The appointments were due on March
21, 2019, but the Governor and Chief Justice were finally able to meet on
March 26, 2019 for a productive discussion regarding the judicial selection process.
Following that meeting, the Governor interviewed the AJC’s two nominees as soon as
was practicable and then appointed Kristen Stohler to the Palmer seat on April 17, 2019,
before it ever became vacant. The five-day delay, associated with the Governor’s meeting
with the Chief Justice, resulted in a more fully-informed decision by the Governor,
brought about no harm to the public or judiciary, and substantially complied with the
prescribed timeframe.
94
There are numerous other areas in statute where timelines or actions are
considered more of a guideline than a mandate. For example, the legislature is required
by AS 24.05.150 to complete its session in ninety days but regularly fails to meet that
timeline, instead relying on the constitutional 120-day timeline. Alaska Const. art. II, § 8
(the legislature must adjourn “no later than one hundred twenty consecutive calendar
days from the date it convenes”). Legislators cannot be subject to a recall application for
the mere failure to adjourn in ninety days, just as the governor cannot be subject to a
recall application for the failure to meet the forty-five day timeline for appointment of a
judge, especially where no judicial seat was left vacant.

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 19 of 25

choice of whom to appoint.95 This illustrates that the timelines are not set in stone and
allowing more time does not amount to a constitutional violation. In fact, during
Governor Walker’s administration, the AJC intentionally delayed submitting its
nominations to the governor rather than submitting them immediately following the
AJC’s candidate interviews. Because of that delay, all five of Governor Walker’s
appointments on February 9, 2017 were made more than forty-five days after the AJC
interviews were completed.96
Because the forty-five day timeframe is merely procedural rather than substantive,
the mere failure to comply with it does not amount to neglect of duty. Instead, the
Governor fully complied with the substantive constitutional requirement to appoint a
judge to fill a vacancy. This allegation, as a matter of law, does not fit the definitions of
incompetence or lack of fitness that we explain above.

95

AS 22.10.100 (and the ninety-day time period can be extended with the
concurrence of the Supreme Court).
96
One appointment was made approximately fifty-two days following the AJC
interview. Four others were made more than sixty days following their respective AJC
interviews. Judge Pat Douglas of Dillingham Superior Court had retired in the fall of
2016, and Judge Reigh was appointed to the Dillingham seat February 9, 2017,
approximately sixty-five days after interviews were completed for Dillingham Superior
Court. See http://www.ajc.state.ak.us/selection/histlog.html#a2015;
https://www.kdlg.org/post/tina-reigh-formally-installed-dillingham-superior-courtjudge#stream/0. Although the AJC delayed in order to accommodate Governor Walker’s
cancer treatment, the fact that the AJC delayed indicates that the timeframe is not
substantively mandatory. If the timeframe were substantive and mandatory then the AJC
would not have delayed and would have nominated regardless of Governor Walker’s
circumstances.

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy
2.

November 4, 2019
Page 20 of 25

The allegation that Governor Dunleavy misused state funds
without proper disclosure and for partisan purposes fails to
allege sufficient facts to support recall.97

The second allegation, stripped of its legal conclusions, reads: “Governor
Dunleavy…authoriz[ed] and allow[ed] the use of state funds…to purchase electronic
advertisements and direct mailers making…statements about political opponents and
supporters.” The facts alleged in this allegation do not meet the factual sufficiency
requirement. Instead, the allegation contains the assertion that electronic advertisements
and direct mailers were sent using state funds, and that these materials made statements.
This does not show a violation of a substantive duty since state funds can be spent on
mailers and electronic advertisements.
The allegation does not indicate what the statements said, except that they were
about “political opponents and supporters.” Without any further specific facts of what
occurred, it is hard to discern exactly what the wrongful conduct was. Does political
opponents and supporters mean candidates who had already filed declarations of
candidacy? Does that mean the Republican or Democratic Party? And were these made
when there was an ongoing campaign? Also, did the governor have a direct hand in
purchasing and creating these electronic advertisements? The allegation provides no
specific facts to establish that these were unlawful partisan statements made for partisan
purposes. Additionally, to say “authorized and allowed” does not show specific personal
involvement in, or knowledge of, the creation and approval of content. The allegation
states no specific facts regarding how the governor was aware of, or personally
authorized, the allegedly partisan statements. This is important because “there is no
authority for the proposition that a public official may be recalled for the act of a
97

As noted above, the referenced supplemental material is not considered because its
inclusion would not substantially comply with the 200-word limit. We cannot look
outside the four corners of the statement of grounds. AS 15.45.680; see also von
Stauffenberg, at 1060; Meiners, 687 P.2d at 302–303; Citizens, 3AN-05-12133CI at 14;
Steadman, 641 P.2d at 453. But even if this referenced material was taken into account,
the sole electronic advertisement attached to the legal opinion from Legislative Legal
Services does not demonstrate a partisan political purpose. The advertisement is not
directed at a specific candidate or political group and was not issued during the course of
an election. The subject matter of the advertisement is the PFD, which benefits resident
Alaskans. The message of the advertisement encourages Alaskans to get involved with
the legislative process by communicating with their legislators. This does not amount to a
partisan political purpose, but rather normal outreach by the Office of the Governor on
matters of public interest, and mere encouragement of citizens to petition their elected
representatives. Both permanent fund dividends and citizens engaging to petition their
elected representatives benefit the public interest.

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 21 of 25

subordinate done without the official’s knowledge or direction.”98 As written, the second
allegation states legal conclusions without facts to support them. The application does not
put the governor or electorate on notice of what specific actions on his part personally
amount to neglect of duty, incompetence, or lack of fitness.
The lack of particular facts also leads to legal insufficiency. Without more facts, it
is impossible to determine whether the advertisements or mailers were intended for
partisan purposes and whether the language was partisan, which is required in order to
find a potential violation of the Executive Branch Ethics Act. Partisan political purposes
is defined in 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 . . . 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.
Whether public funds are used for partisan political purposes is a “heavily factdependent” legal question, and in this context especially “the principle laid down in von
Stauffenberg, that there be specific facts alleged, needs to be followed.”99 It is lawful to
use public funds when the use “include[s] having the intent to benefit the public interest
at large through the normal performance of official duties.”100 The facts do not specify
whether the alleged use of funds included such an intent, and without any indication of
the language or targets of the ads and mailers, we cannot objectively infer the intent. This
makes it impossible to determine whether the use of public funds was lawful or
unlawful.101 Because the included facts do not support the legal conclusions, the
allegation is legally insufficient as to neglect of duty, incompetence, and lack of fitness.
And the allegations do not as a matter of law fit the definitions of incompetence or lack
of fitness.

98
99
100
101

Reed, 124 P.3d at 281–82 (quoting Morrisette, 756 P.2d at 1320).
Citizens, No. 3AN-05-12133CI at 13–14.
AS 39.52.120(b)(6).
Citizens, No. 3AN-05-12133CI at 13–14.

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy
3.

November 4, 2019
Page 22 of 25

The allegation that Governor Dunleavy violated separation of
powers is based on the Governor’s lawful exercise of his
constitutionally granted discretionary line-item veto authority
and cannot be grounds for recall.

Alaska Constitution article 2, section 15 expressly authorizes the governor to lineitem veto sums of money in any appropriation bill at his discretion, including
appropriations to the judiciary. The constitution does not except the judiciary from the
governor’s line-item veto power. The legislature then has the opportunity to override
each veto with a three-quarters vote under article 2, section 16. In the third allegation, the
sponsors allege that Governor Dunleavy used the line-item veto to “attack the judiciary
and the rule of law” and “preclude the legislature from upholding its constitutional
Health, Education and Welfare responsibilities.” These are conclusory statements with no
detail on what and how much the Governor vetoed or how the vetoes precluded the
legislature from upholding its duties. The allegation regarding Health, Education, and
Welfare responsibilities is particularly vague, and it would be difficult for the targeted
official to respond in 200 words, let alone for the public to understand what actions of the
Governor are at issue aside from his constitutionally granted discretionary authority to
strike or reduce appropriations generally or general policy disagreements over his vetoes.
For these reasons, the third allegation is factually insufficient. But even if it is found to be
factually sufficient, the governor’s use of the constitutionally granted line-item veto
authority is absolutely legal, purely discretionary, and disputes over policy cannot be
grounds for recall.102
The budgeting process is a “joint responsibility” of the legislature and the
governor “to determine the State’s spending priorities on an annual basis.”103 Here,
staying within the confines of the statement of grounds for recall, the Governor exercised
his constitutionally granted line-item veto authority to reduce certain appropriations to
the judiciary along with many other parts of government, in particular relating to health,

von Stauffenberg, 903 P.2d at 1060. General policy disagreements with the
governor, whether regarding budget vetoes or other matters, is not, as a matter of law, a
valid basis for recall. See 2 Proceedings at 1207–40; Meiners, 687 P.2d at 294; Citizens,
No. 3AN-05-12133CI at 14; Cole, 692 P.2d at 803.
103
Simpson v. Murkowski, 129 P.3d 435, 447 (Alaska 2006).
102

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 23 of 25

education, and welfare.104 The next step under the Alaska Constitution is for the
legislature to have an opportunity to override the veto. The allegations do not indicate
that the Governor tried to bypass the legislative power or institute his line-item vetoes
after they had been overridden—likely because the legislative history available on the
legislature’s website shows as a matter of public record that the legislature never
exercised its authority to override any of the vetoes.
This is exactly how the budgeting process is meant to work, and the Governor
exercising his constitutionally granted discretionary line-item veto authority does not
amount to substantial noncompliance with a substantive duty or any showing that he
acted incompetently or was unfit when he made these discretionary decisions. Both the
legislature and the Governor carried out their constitutional duties as set forth in the
constitution. If the Governor’s actions in exercising his constitutionally granted line-item
veto power constituted a ground for recall, then the legislature’s failure to override must
also constitute a ground for recall. But this would be an absurd result and does not
comport with the intent of the recall statutes.
4.

The allegation that Governor Dunleavy mistakenly vetoed more
money than he told the legislature he intended to reduce merely
asserts a scrivener’s error that does not rise to the level of
incompetence, lack of fitness, or neglect of duty.

The only facts in the fourth allegation state the governor “mistakenly vetoed $18
million more than he told the legislature in official communications he intended to
strike.” The fourth allegation goes on to reach a legal conclusion that “the error would
cause the state to lose over $40 million in federal Medicaid funds.” This allegation is
actually attempting to interpret the appropriations bill, which is uncodified law.105
Uncodified law is no different than codified law, except for its temporary nature. Any
legal conclusion about the result of the error or how the law would be interpreted is to be
reviewed de novo by the reviewer of the recall application.
104

One could assume that the allegation about attacking the judiciary refers to the
widely reported veto message on the reduction to the Alaska Court System of $334,700,
the stated purpose of which was to reduce the appropriation by the amount of the cost of
state-funded elective abortions. Although this factual detail is not within the confines of
the statement of grounds for recall and should not be considered, the analysis would not
change, even if it were taken into account. Significantly, the $334,700 veto amounted to
less than 1% of the appropriation to the Alaska Court System. The Governor’s veto came
nowhere near defunding the judicial branch or hindering it from carrying out its
constitutional duties, which arguably could be considered an abuse of discretion that
would amount to a neglect of duty.
105
HB 39 (Ch. 1 FSSLA 2019).

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 24 of 25

House Bill 39, after the governor’s line-item vetoes, shows that the governor
intended to veto, and struck in the allocation section, $27,004,500 to eliminate the Adult
Preventive Dental program.106 This amount, which represents approximately $18 (closer
to $19) million in federal funds and $9 (closer to $8) million in state funds, was
incorrectly transcribed in the appropriation line for the Medicaid Services budget,
resulting in the entire $27 million being shown as a reduction from state funds and not a
combination of state and federal.107 This is clearly a scrivener’s error and is evident as
such on the face of the enacted line-item vetoes.
One scrivener’s error does not amount to a showing of lack of knowledge, skills,
or professional judgment required to perform the discretionary duty of line-item vetoes
on an appropriations bill.108 If this amounts to incompetence, then every governor and
legislator could be recalled for any technical error made on an official document or letter.
For incompetence to be met, the facts must show that skill or judgment is lacking to such
a degree that it is interfering with the ability of the governor to perform his substantive
duties. The governor performed his duty to strike or reduce items, and no facts alleged
show that he lacks the skill or judgment to carry out this duty.109
Additionally, as a matter of law the legal result of this error would not have been
to lose over $40 million in federal Medicaid funds. Following the enactment of the lineitem vetoes, the Department of Law was asked to interpret the enacted law. The
department advised the Office of Management and Budget that HB 39 should be
interpreted to accomplish its intent, which was to eliminate funding for the program. In
order to implement that intent, the reduction in the state general fund appropriation would
not be $27 million but instead would be $8,273,600 with the remainder reduced from
federal funding because the program is funded by a mix of state and federal funds. This
conclusion was based on the clear intent of the legislation as disclosed on the face of the
106

Ch. 1 FSSLA 2019, page 21, lines 16–17.
107
Id. at page 20, line 27.
108
“An allegation akin to mere ‘administrative incompetence’ does not support
recall.” (1992 Op. Att’y Gen. (Aug. 24; 16918-0004).)
109
As a matter of normal routine and practice, the governor does not personally draw
lines over appropriation items. Documents are prepared for him by staff at his direction
on what he wants to veto. He then initials the items. The allegations state no facts to
claim that the Governor personally committed the scrivener error. To take this type of
typographical error that clearly involves multiple staff in the creation of the document
and find that it amounts to a showing of incompetence, lack of fitness, or neglect of duty
on the part of the Governor personally would turn the whole point of requiring grounds
for recall on its head. And once again, an elected official cannot be recalled based upon
the acts of another of which they are unaware and did not approve. Reed, 124 P. 3d at
281–82 (quoting Morrisette, 756 P.2d at 1320).

 Director Gail Fenumiai
Re: Recall Application of Governor Dunleavy

November 4, 2019
Page 25 of 25

bill, which was to veto funding for the program, and as disclosed in the veto message,
which provided that the veto would result in a reduction in spending of state and federal
funds (not just state funds) of $18,730,900 in federal receipts and $8,273,600 in general
funds.110
Moreover, the reasons for rejecting the third allegation also apply here. A
governor’s use of the constitutionally granted line-item veto power is discretionary and
cannot constitute a basis for recall for neglect of duty.111 Even if the enacted
appropriation was interpreted to be a reduction of $18 million in state general funds, there
is no showing that the governor failed to substantially comply with his constitutional duty
in exercising his line-item veto authority. The governor could have intentionally chosen
to reduce the Medicaid Services budget by an additional $18 million in state funds, and
that action would have been completely within the governor’s constitutional discretion.
Disagreement with the governor’s intentional veto of this $18 million could not, as a
matter of law, be a valid ground for recall.112
For these reasons, the fourth allegation fails both factually and legally to make a
prima facie showing of neglect of duty, lack of fitness, or incompetence.
VI.

Conclusion

My recommendation is that you decline to certify the application for recall of
Governor Dunleavy because the statement of grounds is neither factually nor legally
sufficient and therefore not substantially in the form required by AS 15.45.550(1). If you
decline to certify this application, you should advise the recall committee that it has the
right to seek judicial review under AS 15.45.720 within thirty days of the date of the
notice of your determination.
Sincerely

Kevin G. Clarkson
Attorney General
110

The Department of Law’s legal interpretation of HB 39 was included in the veto
message attached to HB 2001 (Ch. 2 FSSLA 2019), which can be found on the Office of
Management and Budget’s website at
https://omb.alaska.gov/ombfiles/20_budget/PDFs/FY20_HB2001_Post_Veto_CR_Detail
_8-19-19.pdf, page 27.
111
von Stauffenberg, 903 P.2d at 1060.
112
See 2 Proceedings at 1207-40; Meiners, 687 P.2d at 294; Citizens, No. 3-AN-0512133 CI at 14; Cole, 692 P.2d at 803.