DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE. ALASKA 99501 PHONE: (907) 269-5100 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE RECALL DUNLEAVY, an unincorporated association, Plaintiff, v. STATE of ALASKA, DIVISION OF ELECTIONS, and GAIL FENUMIAI, DIRECTOR, STATE OF ALASKA DIVISION OF ELECTIONS, Case No. CI Defendants, STAND TALL WITH MIKE, ah independent expenditure group, Intervenor. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND CROSS MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION This case involves an attempt to recall the executive head of state government, the governor of Alaska. It raises important questions about the meaning of statutes that the Alaska Supreme Court has never had occasion to interpret. But despite the lack of caselaw, there are several important principles underlying the law of recall in Alaska that are central to the recall process and critical to this case. The most important principle is that a recall committee?s ZOO-word statement of the grounds for recall must stand on its own, because the Division of Elections and the court will review only the four corners of the statement. In addition, it will be the DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE. SUITE zoo ANCHORAGE. ALASKA 99501 PHONE (907) 269-5100 0 primary source of information for voters at the polling place, should there be a recall election. Another important principle is that Alaska has a for-cause recall scheme, because the Alaska Constitution and statutes do not permit recall based simply on policy disagreement. But ?Recall Dunleavy??the recall committee that has ?led this case to defend its statement of grounds to recall the governor?has submitted a motion for summary judgment that ignores these foundational principles. The 55-page motion is little more than a political manifesto ?lled with pages and pages of recall campaign material not found within the four corners of its statement of grounds and therefore irrelevant to the statement?s suf?ciency. And the committee?s motion makes no real attempt to defend the language of its statement of grounds or argue why it complies with the law. This is a signi?cant omission, because the committee?s statement alleges grounds that either fail to explain how the relevant conduct resulted in any consequence or harm that justi?es recall or are so vague that it is impossible to determine whether they state a claim for recall under the statutory criteria. This gives the recall effort the appearance of a political gambit initiated because of policy differences with the governor rather than a recall campaign motivated by conduct that actually falls within the statutory grounds. In short, the committee has failed to give attention to the simple details needed for fairness to the governor, for review by the Division and the courts, and for informed decisions by the voters. Its statement of grounds and its motion are heavy on hyperbole and short on the basic process requirements of recall. That is not how recall works in Alaska. Alaska?s recall scheme does not require a Recall Dunleavy v. SOA, Div. 0f Elections, enumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 2 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: 269-5100 0 lot from the recall committee, but it does require a statement of grounds establishing cause that is stated with particularity. The integrity of the entire process depends on this, as described in full below. State of?cials in Alaska have an expectation of serving a full term without being subject to a recall election, absent particular allegations that meet the statutory grounds to show cause. Voters, a majority of whom voted to place the elected of?cials in of?ce, have an expectation that those of?cials will serve without the distraction of politically motivated recall attempts based on inconsequential reasons. And the Division of Elections and the courts cannot preserve the integrity of this recall scheme without the ability to determine whether a recall committee has alleged grounds that state a claim under the statutory criteria. Because the recall committee?s statement of grounds fails to state with particularity conduct that meets the statutory criteria of cause, the Director of Elections correctly declined to certify the recall and this Court should af?rm that decision and grant summary judgment to the State. 11. FACTS Governor Michael J. Dunleavy was elected on November 6, 2018. On September 5, 2019, a recall committee ?led an application to recall him. The application provides the following allegations as grounds for recall: 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 Recall Dunleavy v. SOA, Div. 0f Elections, enumiai Case No. CI Opp. to Plaintiff?s MSJx?Cross Motion for Summary Judgment Page 3 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907) 289-5100 0 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: attack the judiciary and the rule of law; and 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 of?cial 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 ch.1?2, 0MB Change Record Detail (Appellate Courts, University, AHFC, Medicaid Services).1 The application was accompanied by: a $100 deposit; (2) a statement that the sponsors are quali?ed voters; (3) a designation of a recall committee of three sponsors who represent the people who signed the application; (4) the signatures of at least 100 quali?ed voters who subscribed to the application as sponsors; and (5) the signatures and addresses of allegedly quali?ed voters equal to more than 10 percent of those who voted in the last general election.2 The statement of grounds for recall also referenced statutes and other additional material, including an Of?ce of Management and Budget Change Record Detail and a Legislative Division of Legal and Research 1 See Af?davit of Scott M. Kendall (?Kendall Af?davit?), Exhibit 1 at l. 2 See Kendall Af?davit, Exhibit 2 at 2-3. Recall Dunleavy v. SOA, Div. 0f Elections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 4 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE. ALASKA 99501 PHONE: (907) 269-5100 0 Services Memorandum.3 On November 4, 2019, the Director of the Division of Elections declined to certify the recall application4 because it was ?not substantially in the required forrn.?5 This lawsuit followed. [11. RECALL IN ALASKA The Alaska Constitution expressly provides for the recall of elected public of?cials. Article XI, section 8 declares: ?All elected public of?cials in the State, except judicial of?cers, are subject to recall by the voters of the State or political subdivision from which elected. Procedure and grounds for recall shall be prescribed by the legislature.? The procedures prescribed by the legislature require ?rst the ?ling of an application, which must include: (1) the name and of?ce of the person to be recalled; (2) the grounds for recall described in particular in not more than 200 words; (3) the printed name, the signature, the address, and a numerical identi?er of quali?ed voters equal in number to 10 percent of those who voted in the preceding general election in the state or in the senate or house district of the of?cial sought to be recalled, 100 of whom will serve as sponsors; each signature page must include a statement that he quali?ed voters signed the application with the name and of?ce of the person to be recalled and the statement of grounds for recall attached; and (4) the designation of a recall committee consisting of three of the 3 Kendall Af?davit, Exhibit 1 at 1. 4 Kendall Af?davit, Exhibit 3. 5 AS 15.45.550. Recall Dunleavy v. SOA, Div. OfEIections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 5 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE, SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907) 269.5100 0 quali?ed voters who subscribed to the application and shall represent all sponsors and subscribers in matters relating to the recall; the designation must include the name, mailing address, and signature of each committee member.6 The permissible grounds for recall are: lack of ?tness, (2) incompetence, (3) neglect of duties, or (4) corruption?? The recall statutes do not de?ne these terms. An application to recall a state of?cial must be ?led with the Director of the Division of Elections.3 The director then reviews the application to determine whether it should be certified.9 Alaska Statute 15.45.550 provides that the director shall deny certi?cation upon determining that: (1) the application is not substantially in the required form; (2) the application was ?led during the ?rst 120 days of the term of of?ce of the of?cial subject to recall or within less than 180 days of the termination of the term of of?ce of any of?cial subject to recall; (3) the person named in the application is not subject to recall; or (4) there is an insuf?cient number of quali?ed subscribers.10 If an application is certi?ed, the director prepares petitions containing the name and of?ce of the target of the recall, ?the statement of the grounds for recall included in the application,? and information about the cost of the recall to the State.11 The recall 6 AS 15.45.500. AS 15.45.510. 3 AS 15.45.480. 9 AS 15.45.540. '0 AS 15.45.550. AS 15.45.560. Recall Dunieavy v. SOA, Div. 0f Elections, Fenumz?az' Case No. CI Opp. to Plaintiff?s MSJa?Cross Motion for Summary Judgment Page 6 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE (907) 269-5100 sponsors must then collect signatures from quali?ed voters ?equal in number to 25 percent of those who voted in the preceding general election? and ?le those signatures no later than 180 days before the end of the term of of?ce of the target of the recall.?2 In the event of a recall election, the director must provide to each election board ?copies of the statement of the grounds for recall included in the application and the statement of not more than 200 words made by the of?cial subject to recall in justi?cation of the of?cial?s conduct in office?? Each election board ?shall post at least one copy of the statements for and against recall in a conspicuous place in the polling place.?14 IV. STANDARDS TO BE APPLIED BY THIS COURT A. General Principles. Only a handful of Alaska cases address the recall statutes, and the only Alaska Supreme Court cases involve the municipal recall statutes, which differ from the statutes governing the recall of state-level of?cials in signi?cant ways. Nevertheless, several basic principles can be gleaned from the statutory scheme, the debate over recall at the constitutional convention, and the limited existing case law to guide this Court?s analysis of the issues presented in this case. These principles are (1) that the court?s review is limited to the four corners of the application; (2) that recall in Alaska is for- cause and cannot be based on policy disagreements; (3) that a targeted of?cial?s due '2 AS 15.45.610; AS 15.45.630. '3 AS 15.45.680. '4 Id. Recali Dunleavy v. SOA, Div. 0f Elections, Fenumr'az' Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 7 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907} 269-5100 0 process right mandates clearly stated factual and legal bases for recall; and (4) that allegations stated with particularity are required in order to maintain the integrity of the entire recall process. 1. Review of the recall application to determine whether it complies with the statutory requirements is limited to the four corners of the document. The ?rst and primary principle is that this Court?s review of the recall application to determine whether the director properly denied certi?cation must be limited to the four corners of the application, and, for purposes of this litigation, to the statement of grounds speci?cally.l5 The question for this Court is not whether Recall Dunleavy has stated suf?cient grounds to recall the governor in its 55-page motion for summary judgment, but only whether the 200 words of its recall application suf?ciently describe the grounds constituting cause for recall. This limitation is inherent in the statutory scheme, which assigns the division the task of determining whether ?the application? is ?substantially in the required form??6 The ?required form? is set out in AS 15.45.500, which provides in relevant part that ?[t]he application must include (2) the grounds for recall described in particular in not more than 200 words." The target of any recall, moreover, is limited to 200 words of rebuttal to respond to the allegations of the application,? and the voters will have the '5 The director determined that the application could not be certi?ed solely because the statement of grounds did not comply with the statutory requirements. See Kendall Affidavit, Exhibit 3 at 1; see also AS ?6 AS 15.45.5500) (emphasis added). 17 AS 15.45.680. Recall Dunleavy v. SOA, Div. 0f Elections, enumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 8 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907) 269-5100 bene?t of only the 200 words of the application and the rebuttal at the polls.18 Therefore, the application must stand on its own in making the case for recall. Neither the division nor the court may assume knowledge of facts not included in the 200 words of the application. This principle is demonstrated in all of the Alaska cases, which focus solely on the language of the application and do not consider other facts or allegations in evaluating whether the grounds for recall have been suf?ciently alleged.? In Citizens for Ethical Government v. State, then-Superior Court Judge Craig Stowers stated that he understood his task to be to disregard the ?considerable extra or extraneous materials presented to me,? and ?ultimately [to] take the language of the petition . . . and evaluate the language for both its factual and legal suf?ciency in light of? the law.20 When, during argument, the recall committee?s attorney referred to facts not stated in the petition, the court redirected and reminded him, ?But again, my focus is on the language ?3 Id. '9 See Meiners v. Bering Strait Sch. Dist, 687 P.2d 287, 298-302 (Alaska 1984) (analyzing facts alleged in speci?c paragraphs of petition); von Stau?enberg v. Committee for Honest and Ethical School Bd., 903 P.2d 1055, 1059-1060 (Alaska 1995) take the facts alleged in the ?rst and fourth paragraphs as true and determine whether such facts constitute a prima facie showing of misconduct in of?ce or failure to perform prescribed duties?); Coghill v. Rollins, 4FA-92-1728CI (Alaska Super., Sept. 14, 1993) (Savell,, J.) at 18-24 (analyzing only speci?c factual allegations in application); Valley Residents for a Citizen Legislature v. State, 3AN-04-06827CI (Alaska Super., August 24, 2004) (Gleason, J.) at 8-12 (relying on facts alleged in application); Citizens for Ethical Government v. State, 3AN-OS-12133CI (Alaska Super. Jan. 4, 2006) (Stowers, J.) at 24 (?But again, my focus is on the language of the petition?) and 72-73. 20 Citizens for Ethical Government, at 9. Recall Dunleavy v. SOA, Div. 0f Elections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 9 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907) 269-5100 of the petition?? And in presenting his decision, Judge Stowers expressly stated that he had ?not reached [his] decision with reference to any of the extraneous information that?s been provided by any of the parties.?22 And the court quoted AS 15.45.500?s requirement that ?the grounds for recall [be] described in particular in not more than 200 words,? noting that ?if this statute has any meaning at all, 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. ?23 Limiting the court?s consideration only to the 200 words or less of the application is also consistent with the use of a motion to dismiss standard required by the Alaska Supreme Court in Meiners24 and von Staarjj?Enberg.25 The function of the review by the Division of Elections and the court is to determine whether the allegations, as made, state a claim that meets the statutory criteria for recall. In evaluating a motion to dismiss, the court looks only at the four comers of the complaint.26 Thus, in van Stau?enberg, the Court declared: ?we take the facts alleged in the ?rst and fourth paragraphs as true and determine whether such facts constitute 73. (Emphasis added). 24 Meiners, 687 P.2d at 300 n.18 (?We are in a position similar to a court ruling on a motion to dismiss a complaint for failure to state a claim?). 25 von Stau?enberg, 903 P.2d at 1060. 26 See Larson v. State, Dep ?t of Corrections, 284 P.3d 1, 7 (Alaska 2012) (?In reviewing a motion to dismiss, we generally do not consider matters outside the complaint . . Recall Dunleavy v. SOA, Div. Elections, enumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 10 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE, SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907) 209-5100 primafacie showing of misconduct in of?ce or failure to perform prescribed duties? (the recall grounds cited in that case).21F Similarly, in Meiners, the court noted that it would not concern itself with the truth of the allegations and left that decision to the trier of fact??the voters.28 This Court must therefore evaluate the statement of grounds presented with the recall application, and only that statement. Despite this, Recall Dunleavy?s motion for summary judgment pays remarkably little attention to the language of its application, offering instead an extensive discussion of factual allegations and legal assertions that are not included in the statement of grounds.29 But all of that additional information?information not found within the four comers of its recall application?4s irrelevant and should be disregarded by this Court.30 The plain language of the statutory scheme and the analysis in every Alaska case indicates that the sponsors of a recall must make their case in their application, stated in 200 words or less. For that reason, in determining the suf?ciency of the recall application, the division did not consider any of the factual materials referenced at the bottom of the statement of grounds, because those materials would take the statement far in excess of the permitted 200 words.31 And this Court may not consider them either. Alternatively, 27 von Stau??enberg, 903 P.2d at 1059-60 (emphasis added). 23 Meiners, 687 P.2d at 300 n.18. 29 Plaintiff?s Motion for Summary Judgment (?Plaintist Motion?) at 16-53. 30 The State is filing a motion to strike this extraneous material alongside this opposition and cross-motion for summary judgment. 3? Kendall Af?davit, Exhibit 2 at 3. Recall Dunleavy v. SOA, Div. 0f Elections, enumt?ai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 11 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE, ALASKA 99501 PHONE (907) 269-5100 0 if it does, it should af?rm the division?s decision to deny certi?cation on the straightforward basis that the statement of grounds exceeds the maximum word limit. Similarly, this Court must refuse to consider any of the additional factual materials relied on by Recall Dunleavy?s motion for summary judgment?either in the footnotes or as exhibits to counsel?s af?davit?or any argument based on those alleged facts.32 Not only were these factual allegations and legal arguments not presented to the division, had they been presented in the same way they would far have exceeded the maximum word count. 2. Public officials in Alaska may not be recalled for purely political reasons. The second general principle for recall in Alaska is that public of?cials are not subject to recall for purely political reasons.? For example, the electorate?s dissatisfaction with an elected of?cial?s policies are not a suf?cient basis for recall. Alaska?s constitutional delegates wanted the state?s elected of?cials to be free to focus on the business of governing for a full term, absent serious acts or omissions that call into question the of?cial?s ability or suitability to continue in of?ce. Disagreement with a duly elected of?cial?s policies is fodder for elections, not for recall. In comprehensive discussions at the convention, the delegates rejected two 32 To illustrate how much the committee?s arguments rely on facts not included in the application, the Division has attached to this opposition a copy of the argument section of the committee?s motion with the extraneous facts?and the arguments relying on those facts?highlighted in yellow. See Exhibit A. 33 See AS 15.45.510 (?The grounds for recall are (1) lack of ?tness, (2) incompetence, (3) neglect of duties, or (4) corruption?). Recall Dunleavy v. SOA, Div. 0f Elections, enumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 12 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE. ALASKA 99501 PHONE: (907) 269-5100 amendments that would have allowed recall without speci?ed grounds.34 They did not ?35 of ?recall for whatever grounds want public of?cials to be subject to the ?nuisance the people feel are justi?ed.?36 They also rejected a ?low-bar? recall that would allow a technical but harmless act or omission to serve as grounds for recall.? Consistent with the delegates? clear direction that the legislature should impose meaningful grounds, the relevant statute sets forth four criteria. All four criteria state serious grounds that are intended and should be interpreted to create a genuine obstacle to petty or political recall: lack of ?tness, incompetence, neglect of duties, or corruption}8 These categories could be interpreted broadly to include almost anything, or so broadly that?as the recall committee claims?they overlap.39 But that would make the delegates? intent that recall in Alaska be used only for signi?cant reasons largely illusory and would open the flood gates for the political recall that the delegates rejected. And it would allow the committee to cite grounds that have little impact on an of?cial?s job performance as a pretense to recall the of?cial for political or policy differences. For this reason, the statutory criteria should be interpreted with rigor. The for-cause nature of Alaska?s recall process puts the burden on establishing 3? See Section V.B., in?a. 35 2 Proceedings of the Alaska Constitutional Convention (PACC) 1238 (January 5, 1956). 36 Id. At 1214-15. 37 Id. At 1207-1212; see also discussion in V.B., in?a. 38 AS 15.45.510. 39 Plaintiff?s Motion at 9. Recall Dunlemy v. SOA, Div. 0f Elections, Fenumz'az' Case No. 3AN-19-10903 CI Opp. to Plaintiff MSJ/Cross Motion for Summary Judgment Page 13 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE, sum: zoo ANCHORAGE. ALASKA 99501 PHONE (901) 269-5100 grounds for recall squarely on the recall committee. For a duly-elected of?cial in a for- cause recall jurisdiction, removal from of?ce is an extraordinary proceeding and should not be treated The recall committee?s burden to establish cause includes stating allegations that clearly identify the acts at issue and explaining why they are worthy of recall. Anything less compromises the of?cial?s due process rights, as explained below. 3. Due Process mandates that the committee?s allegations must clearly state a factual and legal basis for recall, so that the recall subject has notice and a meaningful opportunity to be heard. Third, Alaska?s just-cause requirement means that elected of?cials are entitled to due process when subject to the threat of a recall. Unlike Alaska?s other direct- democracy processes, initiative and referendum, recall involves an elected of?cial who has a countervailing interest to the desires of the recall committee?that is, the interest in staying in the position to which the of?cial was duly elected for the full term of office.40 And recall threatens an of?cial?s continuance in of?ce. The constitutions of the United States"l and Alaska42 both prohibit state action that deprives individuals of property without due process of law. In Alaska, public employees who may be terminated only for just cause have a property interest in 4? Meiners, 687 P.2d at 296 n.7 (?RecalL of course, differs from initiative and referendum in that a particular person?s continuance in of?ce is at stake, and not just the fortunes of a policy or issue?). 4' U.S. CONST. amend. XIV, 1. 42 Alaska Const. art. I, 7. Recall Dunleavy v. SOA, Div. OfElections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff MSJ/Cross Motion for Summary Judgment Page 14 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907) 269-5100 0 continued employment.43 The extent of due process required for recall of elected of?cials depends on the government?s recall laws, because of?cials take of?ce subject to the conditions imposed by the terms and conditions of the political system in which they operate. Thus, an of?cial in a state that requires no grounds for recall may have a diminished right to notice of a particular reason for recall or an opportunity to respond.44 The of?ces in those jurisdictions are purely at-will positions. In contrast, of?cials in jurisdictions with for-cause recall, like Alaska, are entitled to more process. Because those of?cials have an expectation of remaining in of?ce for a full term absent speci?ed grounds, they are entitled to a process that provides notice of the grounds alleged and a meaningful opportunity to respond. A ?fundamental requirement of due process? is ?[n]otice reasonably calculated to afford the parties an opportunity to present objections to a proceeding.?45 In Alaska, the recall statutes provide for notice of the grounds through the application, which must include ?46 ?the grounds for recall described in particular in not more than 200 words. The second prong of due process?the opportunity to be heard?is provided in 43 City of North Pole v. Zabek, 934 P.2d 1292, 1297 (Alaska 1997). 44 Sproat v. Arnau, 213 So.2d 692 (Fla.l968) (upholding as constitutionally suf?cient an af?davit in support of a recall petition alleging loss of con?dence in elected of?cials, where the city charter provided that a charge that a majority of the electors had lost con?dence in the commissioners sought to be recalled would be suf?cient): Bonner v. Beisterlr'ng, 136 S.W. 571 (Texas 1911) (rejecting due process claim because of?cial took the of?ce under law that provided at-will recall, and ?the proceeding is just what be contracted for when he accepted the of?ce?). 45 Kerr v. Kerr, 779 P.2d 341, 342 (Alaska 1989). 46 AS Recall Dunleavy v. SOA, Div. 0f Elections, enumiaz' Case No. 3AN-19-10903 CI Opp. to Plaintiffs MSJ/Cross Motion for Summary Judgment Page 15 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907) 269-5100 Alaska?s recall scheme by the of?cial?s rebuttal to the application.47 The targeted of?cial may provide the Director with justi?cation of the of?cial?s conduct in a statement of 200 or fewer words, which the Director provides to each election board to post ?in a conspicuous place in the polling place.?48 Although due process generally requires only notice to the deprived party, in a for-cause recall jurisdiction, it requires suf?cient notice to others as well, most notably to the voters. Voters need to understand the allegations suf?ciently to determine, in light of the subject?s rebuttal statement, how to vote.49 Notice to the of?cial and notice to voters cannot be separated for due process purposes because the voters are the decision- makers. Unlike a government agency terminating an employee or reducing public bene?ts, the voters do not have full background information of the reason for the proposed deprivation. They must be able to rely on the bare allegations of the application and the of?cial?s ZOO-word rebuttal in order to make an informed decision when casting a vote. While some voters may independently inform themselves more fully about the underlying issues, the process provides them?through the allegations and rebuttal?focused basic information for their decision. The ability to identify the conduct underlying the recall effort is critical to due 47 AS 15.45.680. 43 1d. 49 See Davis v. Shavers, 439 650, 652 (Ga. 1994) is imperative that the application state with clarity and speci?city the facts supporting the grounds for recall such that both the public and the of?cial sought to be recalled are properly noti?ed of the violation alleged to have been committed?). Recall Dunleaw v. SOA, Div. 0f Elections, Fenumz'ai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s Motion for Summary Judgment Page 16 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE. SUITE 200 ANCHORAGE. ALASKA 99501 PHONE (901) 269-5100 0 process. In Meiners, the Alaska Supreme Court noted that ?[t]he purpose of the requirement of particularity is to give the of?ceholder a fair opportunity to defend his conduct in a rebuttal limited to 200 words.?0 This does not mean that the stated allegations need to identify the grounds only to the targeted of?cial. Even if a targeted of?cial might guess what a vague or conclusory allegation means, the of?cial must respond to it in only 200 words. If the of?cial has to speculate about the possible meanings, and then both explain these possibilities and fully respond to them in a ZOO-word rebuttal to voters, the of?cial will be deprived of both notice and the opportunity to be heard. In addition, the voters will have an insuf?cient statement of the grounds and an insuf?cient response, adding up to insuf?cient information on which to deprive the of?cial of a full term in of?ce. The fairness of the opportunity to respond is critical to ful?lling due process: ?the crux of due process is opportunity to be heard and the right to adequately represent one?s Without clear allegations as a foundation, a recall subject cannot hope to have a meaningful opportunity to rebut them in such a short statement, cannot adequately represent his or her own interests, and will thus be denied due process. 50 von Stauj?enberg, 903 P.2d at 1060 (quoting Meiners, 687 P.2d at 302). 5? Dennis 0. v. Stephanie 0., 393 P.3d 401, 411 n.73 (Alaska 2017) (quoting In re K.L.J., 813 P.2d 276, 279 (Alaska 1991)). Recall Dunleavy v. SOA, Div. 0f Elections, enumiai Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 17 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE. ALASKA 99501 PHONE (907) 269-5100 4. The application must include allegations that are stated with particularity, so that the Division of Elections and reviewing courts can determine whether they are legally suf?cient and also to provide notice to the targeted of?cial and to voters. The fourth general principle is that under Alaska?s recall statutes, an application will not be certi?ed unless it states each alleged ground for recall with particularity.? The recall committee suggests that although Alaska?s recall statute requires that grounds be ?described in particular,?3 the allegations do not have to describe any ?specific instances.?4 The committee also characterizes the Attorney General Opinion as ?impennissibly chang[ing] the focus of the particularity requirement? by ?claiming that it requires the grounds to be ?factually suf?cient.?55 In making these assertions, the committee misunderstands both the meaning of the statute and the essential role that the particularity requirement plays in Alaska?s recall scheme. The particularity requirement serves two primary functions. First, an application must state allegations with particularity so that the Division of Elections and a reviewing court can determine whether the application is ?substantially in the required form??that is, whether the factual allegations state a claim under one of the statutory criteria for recall.56 Second, the stated allegations must be suf?ciently particular to allow the targeted of?cial a meaningful opportunity to respond and to give voters 52 AS 53 1d. 54 Plaintiff 3 Motion 15.45.5500). Recal! Dunleavy v. 80A, Div. 0f Elections, Fenumz'ai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s Motion for Summary Judgment Page 18 of 57 DEPARTMENT OF LAW OFFICE OF THE A1TORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE (907} 269-5100 speci?c information so they can decide whether to vote in favor or against recall. These functions are essential to Alaska?s recall scheme, notwithstanding the committee?s suggestion that it could not state allegations with particularity because of the ZOO-word limit.? Obviously, allegations must be stated more concisely with each additional ground added, but the committee accepted that trade-off by choosing to allege four grounds and by failing to use the full 200 words in its application. a. An application must state the grounds for recall with particularity so that the Division of Elections and reviewing courts can determine whether the allegations state a claim under the statutory criteria. Because the right to recall of?cials in Alaska is ?limited to recall for cause,?58 the Division of Elections and reviewing courts must review the legal suf?ciency of recall allegations to determine whether, assuming the stated facts to be true, the allegations constitute a primafacie showing of the identi?ed statutory criteria.?9 The application must describe the allegations with suf?cient particularity to identify the conduct that purportedly creates an issue, and the alleged facts must support legally suf?cient grounds for recall.60 As then-Judge Stowers stated in Citizens for Ethical Government, ?it is for the court . . . to at least make a preliminary or threshold determination whether the factual allegations are alleged with suf?cient particularity or speci?city so that you 57 Plaintiff?s Motion at 24. 53 von Stau??enberg, 903 P.2d at 1059. 59 Id. at 1059-60. 60 AS 15.45.5500). Recall Dunleavy v. SOA, Div. 0f Elections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 19 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE. ALASKA 99501 PHONE: (907) 269-5100 can even get the allegations to the voters?? If the stated facts fail, on their face, to meet one of the statutory recall grounds, the allegation cannot go to the voters.62 The particularity of the factual allegations and the suf?ciency of the legal grounds are interrelated and are examined together. In some situations, the facts might be stated with particularity but simply fail to state a claim based on the statutory criteria. In a Florida case, for example, the state supreme court found that the allegation that a city commissioner gave orders and made requests of city employees without the consent of the city commission did not constitute malfeasance?de?ned as illegal action? because even if the alleged allegations were true, the conduct was permitted by law.63 Alternatively, the allegations may state facts that could state a claim under one of the statutory grounds, but the facts alleged are not speci?c enough to determine this for certain. In von Stau??nberg, for example, a recall committee alleged that school board members had violated Alaska law by meeting in an improper, closed-door executive 6? Citizens for Ethical Government, at 28; see also id. at 80 court is required to make at least a threshold determination as to whether what has been alleged is factually speci?c enough?). ?52 Meiners, 687 P.2d at 303 certifying of?cer may delete severable individual charges from a recall petition if those charges do not come within the grounds speci?ed by statute?). ?53 Bent v. Ballantyne, 368 So.2d 351, 352-53 (Fla. 1979); see also In re Ventura, 600 714, 717-79 (Minn. 1999) (?nding that the allegations in the recall petition concerned conduct that was not within the performance of the govemor?s of?cial duties or was not unlawful and thus did not meet the de?nition of Moutrie v. Davis, 498 So.2d 993, 996-97 (Fla. 1986) (?nding that a councilman?s request that the police chief be ?red and his failure to investigate alleged blackmail did not constitute malfeasance or misfeasance and therefore could not support recall). Recall Dunleavy v. SOA, Div. 0f Elections, Fenumfaf Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 20 of 57 DEPARTMENT OF LAW OFFICE OF THE A1TORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE, SUITE 200 ANCHORAGE, ALASKA 99501 PHONE (907) 269-5100 session to discuss retention of a school employee.64 Alaska law expressly permits school boards to meet in executive session while discussing certain personnel issues, so the court found that the allegation was legally insuf?cient.?55 And because this conduct is permitted in certain circumstances, the court also found that the allegations lacked suf?cient particularity in failing to explain why the executive session violated Alaska law.66 The de?ciency was the failure to state facts necessary to establish that the executive session was improper. Similarly, in Citizens for Ethical Government, the court examined an allegation that a state senator had engaged in corruption by accepting a consulting contract with a company in con?ict with his duties as a senator. The court found that contracting to advocate the position of two clients on matters of mutually shared but con?icting interest does not necessarily constitute corruption, and to the extent that this conduct might constitute corruption in some cases, the petition failed to state speci?c facts indicating this.? Another possibility is an allegation that is simply too factually vague to meet the particularity requirement. In Coghill v. Rollins, the court reviewed an allegation against Lieutenant Governor Coghill that stated that ?[h]is un?tness is demonstrated by this unethical and unprofessional conduct as indicated by his totally unfounded public 64 von Stau?enberg, 903 P.2d at 1057. 65 Id. at 1060. 66 Id. 67 Citizens for Ethical Government, 3AN-OS-12133CI at 81-82. Recall Dunleavy v. SOA, Div. 0f Elections, enumt?ai Case No. 3AN-19-10903 CI Opp. to Plaintiff MSJ/Cross Motion for Summary Judgment Page 21 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE, SUITE 200 ANCHORAGE, ALASKA 99501 PHONE (907) 269-5100 accusations of criminal activity of recall staff.?68 The court found that ?[s]tripped of conclusory labels? such as ?unethical? and ?unprofessional,? the allegation accused Coghill of ?making unspeci?ed public accusations against the recall proponents? without ?indication of when, to whom, and about whom the accusations were made? or what criminal activity was involved.69 The court held that these charges did not ?set forth particular facts upon which voters can conclude that Coghill is un?t for of?ce or which would permit [him] to offer a meaningful response justifying his conduct??0 Neither the division nor the court can neutrally infer facts that are not found in the application, however widely known extraneous information might seem to be. The committee?s factual claims are accepted as true, but those facts must be contained in the ZOO-word statement because the Division of Elections is not generally charged with tracking the acts and omissions of elected of?cials. Its job is to run elections. To understand an application lacking particularity, the division would have to conduct some sort of investigation, thereby prolonging the process and undermining its own impartiality. The statutory scheme does not provide for this, nor does it provide for extraneous evidence to be submitted to the court. Nor would extraneous evidence make sense, as the court?s role is simply to review the division?s certi?cation decision. In addition to allowing the Division of Elections and a reviewing court to determine whether a committee?s allegations meet the statutory criteria, the particularity 68 CoghilZ, 4FA-92-1728CI at 23. 69 Id. 70 1d. Recall Dunleavy v. SOA, Div. 0f Elections, Fenumiai Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 22 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE. ALASKA 99501 PHONE: (907) 269-5100 requirement has another, equally important purpose. The application provides notice of the allegations to voters and to the targeted subject so that the of?cial can prepare a defense. For both the voters and the of?cial, particularity is critical to the integrity of the recall process. b. An application must state the grounds for recall with particularity to provide notice to the targeted subject and to voters. The particularity requirement is necessary to provide an explanation of the allegations to the voters for the recall proposal and to provide notice to the targeted of?cial. The recall committee downplays the particularity requirement by repeatedly suggesting that what matters is only whether the governor has knowledge of the conduct underlying the allegations,? but this fundamentally misapprehends the law. In the context of a recall in Alaska, notice to the targeted of?cial cannot be separated from notice to voters, and both require particularity. This is true for two reasons. 7' See e. Plaintiffs Motion at 23 (?It cannot be disputed that the Governor is on notice regarding which political communications violated the law, and why. The Governor has suf?cient notice of the allegation and can admit or deny doing it id. at 32 (?The Attorney General?s opinion calls the allegation that the Governor ?violated separation-of-powers by improperly using the line-item veto to attack the judiciary and the rule of law? ?conclusory? his opinion also indicates that the Attorney General (and therefore the Governor) knows exactly what speci?c conduct the recall application refers to. As the opinion acknowledges, the full background is well-established by public sources?); id. at 47 is no question that the Governor should understand the allegation to be that his vetoes went so far as to interfere with the legislature?s constitutional duties to provide for health, education, and welfare The Governor has suf?cient notice of this ground?). Recall Dunieavy v. SOA, Div. 0f Elections, enumiai Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 23 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE. ALASKA 99501 PHONE (907) 259-5100 0 First, the allegations are the means by which voters can understand why a recall choice appears on the ballot. Even if it were somehow fair to assume that the targeted of?cial understands vague allegations, the court cannot assume that voters will understand them. Ultimately, ?it is the responsibility of the voters to make their decision in light of the charges and The grounds therefore must be speci?c enough to notify voters of exactly why the of?cial is facing recall. Second, as discussed above, the targeted of?cial is constitutionally entitled to a meaningful opportunity to be heard, and the voters are the decision-makers for recall. The allegations are posted at each polling place, along with the rebuttal.73 The of?cial?s opportunity to be heard is the opportunity to be heard by voters. The requirement that the application state the allegations with particularity is necessary to the of?cial?s ability to respond for the bene?t of voters. Thus, for example, the Georgia Supreme Court found a due process violation when a recall petition charged simply that tax assessors were ?not properly discharging their duties and [were] discriminating in favor of certain citizens and against others.?74 The court found this description to be inadequate: ?[m]ere vagaries or generalities are the notice must be ?suf?ciently specific and detailed to convey to the [of?cer] the substantial nature of the charge without requiring speculation on his part as to the precise complaint he must answer.?75 72 Meiners, 687 P.2d at 301. 3 AS 15.45.680. 3'4 Brown v. Wetherington, 300 680, 682-83 (Ga. 1983). 75 Id. (quoting Hughes v. Russell, 251 70 (Ga. App. 1978)). Recall Dunleavy v. SOA, Div. 0f Elections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 24 of 57 DEPARTMENT OF LAW OFFICE OF THE GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE. SUITE 200 ANCHORAGE. ALASKA 09501 PHONE (907) 269-5100 0 If the allegations do not speci?cally explain what conduct the committee believes is worthy of recall, the of?cial?s rebuttal becomes much more complicated and dif?cult, thereby threatening to deny the of?cial due process. Because a fair process for the targeted of?cial and essential information for voters both require allegations that are stated with speci?city, the particularity requirement is critical to the integrity of the election, and thus to Alaska?s recall election scheme. B. Understanding the grounds for recall. For state of?cials in Alaska, the statutory grounds for recall are (1) lack of ?tness; (2) incompetence; (3) neglect of duty; and (4) corruption. The recall application here alleges generally that the governor should be recalled for lack of ?tness, incompetence, and neglect of duty, but does not allege corruption. Therefore, the Court need not interpret the meaning or scope of ?corruption? to decide this case. Unfortunately, the election statutes do not provide de?nitions of the grounds for recall, and the Alaska Supreme Court has yet to interpret the recall provisions for state of?cials. Moreover, although the superior court has applied a variety of de?nitions for the grounds for recall, the parties in those superior court cases did not contest or litigate Recall Dunleavy v. SOA, Div. 0f Elections, enumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 25 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907) 269-5100 the meaning of the Still, two things are clear. First, to comply with due process and the constitutional convention delegates? rejection of purely political recall, the de?nitions must create a meaningful threshold that recall sponsors must meet in order to move their application forward. Second, consistent with the regular canons of statutory interpretation, the grounds must be understood to describe distinct reasons for recall - so, for example, an of?cial is not also ?incompetent? for the purposes of recall because she ?neglected her duties;? and there must be a difference between the municipal grounds of ?misconduct in office? and ?failure to perform prescribed duties? and the state grounds of ?lack of ?tness,? ?neglect of duties,? and ?corruption?? 1. Lack of ?tness. Because the municipal statutes do not include a ground for recall that appears similar to ?lack of ?tness,? the Alaska Supreme Court has never assessed the likely scope or meaning of this ground for recall. The Attorney General?s opinion proposed that ?lack of ?tness? be interpreted, consistent with other statutory de?nitions of ?tness, 7?5 See Valley Residents, 3AN-04-06827CI at 8 purposes of the motions now before the court, the plaintiffs have accepted the defendants? de?nitions of [the] terms?); at 19 (stating that the recall committee did not offer any de?nitions in support of its motion for summary judgment); Citizens for Ethical Government, 3AN-05-12133CI at 49-50 (acknowledging no dispute about the de?nitions). 77 Alaska Spine Center, LLC v. Mat?Sn Valley Medical Center, LLC, 440 P.3d 176, 182 (Alaska 2019) (?Principles of statutory construction mandate that we assume the legislature meant to differentiate between two concepts when it used two different terms?). Recall Dunleavy v. SOA, Div. 0f Elections, enumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 26 of S7 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE, SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907) 269-5100 to mean a ?substantial lack of physical or mental ability to perform? the duties of the Although the committee rejects this, claiming ?[t]here is no basis in Alaska law for this definition,? because the de?nition is drawn from Alaska statutes, that is plainly incorrect?9 And the committees cites no authority for the claims that there is some ?common understanding of ??tness? for elected of?cials.?80 Moreover, the opinion?s reliance on other statutory uses of the concept of ??tness? follows the superior court?s approach in Coghill v. Rollins, where the court quoted a statutory de?nition of ?incompetence? for teachers as an appropriate starting place to de?ne that term.81 Proposing to substitute one vague, amorphous term (?lack of ?tness?) with another, equally vague and amorphous term, the committee argues that the ?plain meaning of ?un?t? is ?unsuitable? or ?inappropriate,??82 following the superior court?s approach in Coghill v. Rollins. In Coghill, the court simply quoted Black?s Law Dictionary for the de?nition of incompetent; not adapted or quali?ed for a particular use or service; having no ?tness??before ?nding that conclusory allegations of ?unethical and unprofessional conduct? did ?not set forth particular facts upon which voters can conclude that Coghill is un?t for of?ce.?83 7'3 Kendall Af?davit, Exhibit 2 at 15-16. 79 Plaintiff?s Motion at 9. 30 Id. 81 See Coghill, at 19. 32 Plaintiff?s Motion at 7. 83 Coghill, 4FA-92-1728CI at 23. Recall Dunleavy v. SOA, Div. 0f Elections, enumiai Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 27 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: {907) 269-5100 0 Because this determination relied on the lack of factual particularity rather than the contours of ?lack of ?tness,? it is not particularly helpful.84 The committee also quotes the de?nition employed by the superior court in Valley Residents, which the parties had agreed upon: ?unsuitability for of?ce demonstrated by speci?c facts related to the recall target?s conduct in of?ce.?85 But the concept of ?unsuitability for office? is so vague and subjective that it would amount to the kind of purely political, no-cause?required recall that the constitutional delegates expressly rejected. And indeed, this is ?illy apparent from the conclusory assertions of the recall committee?s motion for summary judgment that, for example, ?ignoring deadline based on a need for information? makes an of?cial ?un?t for of?ce.?86 Similarly, the committee?s claim that ??tness for of?ce likewise requires respect for and obedience to the law?87 invites a result that was also expressly rejected by the delegates?Le. that a public of?cial could be subject to recall for any legal violation however minor or inconsequential.88 Thus, even if the Court uses the Valley Residents de?nition of ?lack of ?tness,? it must imbue the notion of unsuitability with far more substance than the committee does, 3?4 Similarly, in the Supreme Court?s memorandum order dismissing Coght?ll v. Rollins as moot?which is without precedential effect?the Court merely noted that ?in the context of a matter which is no longer in dispute,? it did not believe it could add much to common de?nitions. Plaintiff?s Motion, Appendix at 5-6. 35 Plaintiff's Motion at 7-8 (quoting Valley Residents, 3AN-04-06827CI at 10). 36 Plaintiff?s Motion See discussion infra, Section V.B. Recall Dunleavy v. SOA, Div. 0f Elections, Fenumt'at' Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 28 of S7 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE {907) 269-5100 and it should also take seriously that court?s requirement that the statement of grounds state ?specific facts? demonstrating the recall target?s lack of ?tness.89 2. Incompetence. Like ?lack of ?tness,? the term ?incompetence? has not been interpreted by the Alaska Supreme Court. The Attorney General?s opinion cited Judge Savell?s de?nition from Coghill v. Rollins, noting that he held that it ?must relate to a lack of ability to perform the of?cial?s required duties.? The committee complains that the Attorney General?s de?nition??lack [of] suf?cient knowledge, skill or professional judgment? ??adds an unwarranted gloss to the accepted standard,? but fails to explain how that de?nition is meaningfully different from either Judge Savell?s de?nition or their own suggestions: ??lacking the qualities needed for effective action? or ?unable to function properly.?90 Like Judge Savell in Coghz'll, the Attorney General looked to statutory de?nitions of incompetence and the committee fails to identify any real defect in the de?nition employed by the Attorney General. But whatever speci?c language this Court adopts as its de?nition of incompetence, one thing is clear-- -- the de?nition cannot be so broad as to cover any possible kind of mistake or judgment error of a public of?cial, without effectively permitting political recall, especially if the alleged error of judgment is actually a subjective assessment of the wisdom of a policy decision. Again, in this context, a 89 Valley Residents, 3AN-O4-06827CI at 10. 9? Plaintiff?s Motion at 10. Recall Dunleavy v. SOA, Div. 0f Elections, enumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 29 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE. ALASKA 99501 PHONE (907) 269-51 no r. broad, amorphous de?nition of ?incompetence? would simply allow this ground to serve as proxy for impermissible recall based on policy differences. 3. Neglect of duty. The Attorney General?s opinion de?ned ?neglect of duties? as ?substantial noncompliance with one or more substantive duties of reasoning that there must be some threshold for ?neglect? or this ground could be too easily used to accomplish a purely political recall. And, in fact, this concern is borne out by the committee?s interpretation of this ground. The committee ?rst asserts that if a state of?cial fails ?to do something expressly required by law,? that ?clearly sets forth a neglect of duty ground.?92 Apparently, in the committee?s View, it does not matter what the task is or what the repercussions of the failure, if any, might be; an of?cial?s failure to follow a statutory instruction, no matter how ministerial or trivial, is enough to warrant recall. But even this is insuf?ciently expansive for the committee. The committee also asserts that ?the Governor is also required to undertake many ?obligatory tasks, conduct, service, or functions? that are not spelled out in the Alaska Constitution or in statutes? and that is up to the voters to decide whether a particular failure to act constitutes a neglect of duty suf?cient to warrant removal from of?ce.?93 In other words, the committee argues that not only is there no meaningful limit to what may be considered a ?duty? for the purposes of this ground, but it is not 9' Kendal] Af?davit, Exhibit 2 at 11-12. 92 Plaintiff's Motion at 12. 93 Id. Recall Dunleavgv v. SOA, Div. Elections, Fenumiai Case No. CI Opp. to Plaintiff MSJ/Cross Motion for Summary Judgment Page 30 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE. ALASKA 99501 PHONE (907) 269-5100 for the division or the court to decide whether a duty has been ?neglected;? that is only for the voters. But this is no standard at all and would effectively create no-cause recall in Alaska. Such an approach ?ies in the face of the clear intent of the constitutional convention and rulings of the Alaska Supreme Court indicating that recall in Alaska cannot be purely political. The ease with which the committee has turned ?neglect of duties? into meaningless verbiage that can be used to initiate the recall of any elected of?cial for even the most trivial reason demonstrates why the Attorney General?s opinion appropriately seeks to inject a genuine threshold requirement that the duty be signi?cant and that the neglect have some negative consequence. Requiring that neglect cause some sort of harm also honors the difference in the statutory language found in the municipal and state recall statutes.94 The committee?s approach erases that difference by interpreting ?neglect? to mean simply ?failure to perform,? which is a recall ground for municipal of?cials.? But ?principles of statutory construction mandate that we assume the legislature meant to differentiate between two concepts when it used two different terms.?96 Thus, the legislature presumably intended to establish a different standard for recalling state of?cials and municipal of?cials when 94 Compare AS 29.26.250 (?Grounds for recall are misconduct in of?ce, incompetence, or failure to perform prescribed duties?) with AS 15.45.510 (?The Grounds for recall are (1) lack of ?tness, (2) incompetence, (3) neglect of duties, or (4) 95 AS 29.26250. 96 Alaska Spine Center, 440 P.3d at 182. Recall Dunlemy v. SOA, Div. 0f Elections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 31 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE, ALASKA 99501 PHONE (907] 269-5100 0 it adopted different terminology. Notably, although the committee is eager to rely on dictionary de?nitions elsewhere in its brief, it does not do so to de?ne the meaning of ?neglect.? This is doubtless because ?neglect? is de?ned as ?disregard? or ?pay little or no respect or attention to,?97 with a strong connotation of intentionality, repetition, and negative consequences. Synonyms for neglect include, for example, dilapidation and disrepair.98 Thus, it is reasonable to read the different statutory standards to require intent, repetition, and a negative consequence that turns a failure to perform a prescribed duty into negiect for the purposes of recall for state of?cials. If this is not the case, then the failure to comply with any statutory requirement?no matter how unintentional, isolated in occurrence, and inconsequential?would be used to justify recall. V. Recall Dunleavy?s application is facially invalid. The recall application presented to the Division of Elections is facially invalid because the statement of grounds fails to allege with particularity facts establishing any of the grounds for recall. Indeed, only one of the paragraphs even identi?es which ground for recall it contemplates. A. Only the fourth allegation of the application identi?es a speci?c ground for recall and therefore the ?rst three allegations are invalid. Rather than allege clearly which statutory ground for recall the ?rst three 97 Neglect, 2 Shorter Oxford English Dictionary 1901 (5th Ed. 2002). 9? Negiect, Merriam-Webster Thesaurus, webster.com/thesaurus/neglect (last visited December 12, 2019). Recall Dunleavy v. SOA, Div. 0f Elections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff MSJ/Cross Motion for Summary Judgment Page 32 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907) 269-5100 0 paragraphs of the statement apply to, the committee has simply bundled three grounds together in a prefatory sentence and called that good. And, as its motion for summary judgment shows, that is a deliberate device, intended to allow the recall campaign to offer multiple theories of wrongdoing that are not even hinted at in the language of the application. This does not, however, comply with basic principles of due process and fairness or the plain requirements of the recall statutes. A recall application must include ?the grounds for recall described in particular in not more than 200 words.?99 The Alaska Supreme Court has noted that at least one purpose of this particularity requirement is to give the targeted of?cial a ?fair opportunity to defend [his] conduct? in the 200 words permitted for rebuttal.100 But if an application fails to identify the ground for recall that the sponsors assert is established by the facts alleged, then the of?cial must either guess which ground to respond to or try to respond to all possibilities. And that does not provide ?a fair opportunity? to respond. Recall sponsors should not be permitted to leverage vagueness and lack of 1.101 particularity to the disadvantage of a targeted of?cia Because paragraphs 1, 2, and 3 fail to identify, much less explain, which ground 99 AS 15.45.500. '00 Meiners, 687 P.2d at 304. Moreover, a lesser standard would not give adequate respect to the regular election process and the will of a majority of voters who cast their ballots in that process to place the elected of?cial in of?ce. By selecting for-cause recall rather than political recall, Alaska?s constitutional delegates intended for elections to have meaning; elections are not to be subject to easy re-do at the whim of losing political factions who disagree with the policy choices of elected of?cials. Recall Dunleavy v. SOA, Div. 0f Elections, enumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 33 of 57 DEPARTMENT OF LAW OFFICE OF THE GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE 269-5100 for recall is established by the facts alleged, they are fatally de?cient and should be rejected. ?02 But even if the Court does not read the particularity requirement to mean at a minimum that a recall application must specify which ground is implicated by which allegations, each of the four paragraphs of the application also fails to state a claim for any one of the grounds for recall, much less all three cited generally by the committee. B. The failure to appoint a superior court judge within the 45-day statutory deadline does not establish lack of ?tness, incompetence, or neglect of duty. The recall committee submitted as its ?rst allegation that: Governor Dunleavy violated Alaska law by refusing to appoint a judge to the Palmer Superior Court within 45 days of receiving nominations. This allegation is insuf?cient to meet any of the standards for recall. Assuming the alleged facts to be true, this allegation does state an act that is noncompliant with the statutory requirement that the governor appoint ajudge within 45 days of receiving a list of choices from the Alaska Judicial Council.103 But the allegation does not indicate, nor is it self-evident, why a technical deviation from the statutory timeframe caused any harm or is otherwise worthy of recall. And this is a fatal omission, because in fashioning recall for Alaska, the constitutional delegates ?02 In Meiners, the Supreme Court declined to decide ?whether a petition which refers to only one of the three statutory grounds for recall may be held sufficient on the basis of a judgment by the municipal clerk or a court that in fact, it properly alleges conduct satisfying a different one of the three statutory grounds.? 687 P.2d at 299 n.14. ?03 AS Recall Dunleavy v. 80A, Div. 0f Elections, Fenumiai Case No. 3AN-19- 10903 CI Opp. to Plaintiffs MSJ/Cross Motion for Summary Judgment Page 34 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907) 269-51 00 unequivocally rejected the concept of subjecting elected of?cials to recall for mere technical violations of the law. Their discussions and decisions indicate that they favored criteria that preclude recall based on insigni?cant reasons. They rejected both a ?no-cause? and a ?low-bar? recall for Alaska, the two major questions they debated on the subject of recall. The Alaska Supreme Court has recognized that the delegates did not favor a ?no-cause? recall.104 Some delegates advocated for this, but they were outvoted. Delegate McCutcheon favored recall for any grounds or no grounds. In his view, doesn?t make any difference whether there are grounds or not, if there is a change in the public sympathy with respect to [of?cials?] politics or their attitude in of?ce or anything else, they should be subject to Delegate Fischer agreed: ?[E]very public of?cial should be liable to recall for whatever grounds the people feel are justi?ed. . . . Let?s leave it to the people. If they feel a man should be kicked out of his job, let the people do Other delegates disagreed, however; delegate Taylor rejected the idea of ?[p]ublic punishment for hypocrisy,? for example")? Delegate Fischer proposed an amendment that would allow ?recall by the voters for any reason that the voters may see but the amendment failed.?08 '04 Met'ners, 687 P.2d at 295. 105 2 PACC 1209 (January 5, 1956). 106 1d. at 1214-15. 107 Id. at 1211. ?03 Id. at 1221, 1237. Recall Dunleavy v. SOA, Div. Of Elections, Fenumiai Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 35 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE, sums zoo ANCHORAGE, ALASKA 99501 PHONE: (907) 289-5100 Delegate White then proposed a similar amendment, which would allow voters to determine their own grounds in each petition, ?leav[ing] it to the people to establish the grounds . . . be it as frivolous as it may, and let the case stand or fall on its merits.?109 Delegate Hurley opposed this amendment because it would ?create a nuisance value to which public of?cials should not be subjected,? preferring instead grounds that were ?sincere.?l '0 Mr. White?s amendment also failed.?l The delegates similarly rejected the concept of a ?low-bar? recall, as indicated by their discussion of one of the grounds initially pr0posed by the Committee on Direct Legislation. The initial committee proposal included four grounds?malfeasance, misfeasance, nonfeasance, or conviction of a crime involving moral turpitude.112 The ?rst three came straight from territorial law,l ?3 and the new fourth ground was the subject of extensive debate by the delegates. Speci?cally the delegates considered whether to remove the requirement that the crime involve ?moral turpitude.? Delegate Hellenthal moved to delete that modi?er and make conviction of any crime a ground for recall, arguing that a public of?cial should be ?beyond reproach? and subject to recall ?irrespective of the nature of the crime.?1 ?4 '09 Id. at 1238. ?0 Id. at 1238. Id. at 1239. ?2 Alaska Constitutional Convention, Committee on Direct Legislation, Committee Proposal No. 3 (Dec. 19, 1965) (Alaska State Archives 320.3). ?3 See Meiners, 687 P.2d at 294 (citing 16?1-61, ACLA 1949). ?4 2 PACC 1207 (January 5, 1956). Recall Dunleavy v. SOA, Div. 0f Elections, Fenumiaz' Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 36 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 PHONE: (907) 269-5100 ANCHORAGE, ALASKA 99501 Delegate V. Rivers wondered if this would mean that a public of?cial could be recalled for going through a red light or parking overtime.115 Mr. Hellenthal answered yes, ?Any crime should be the grounds for recall and then leave it to the good judgment of the people to determine whether the crime was severe enough for them to warrant signing the petition.?116 Delegate R. Rivers did not believe that violation of a law that involved no moral wrong should be grounds for recall, because then ?every public of?cial [would be] subject to recall for the most minor misdemeanor.? [1210] Delegate Johnson agreed, stating that he opposed the amendment because ?there ought to be some protection for public officials.? [1211] This latter position prevailed and the proposed amendment failed. [1212] Ultimately, the delegates decided to leave to the legislature the duty to determine the grounds for recall, and?contrary to the allegations of the committee? 1"??they added that duty to the constitution.? [1240] In the words of delegate Hurley, ?the legislature [should] prescribe the grounds under which a recall petition should be circulated so as to prevent circulation of recall petitions for petty grounds.? [1239] Thus, the delegates intended that recall of Alaska?s elected of?cials would be based on meaningful grounds of a suf?cient magnitude to prevent recall campaigns for 115 1d. ?6 Id. at 1208. ?7 See Plaintiff?s Motion at 5, stating, ?The Alaska Constitution does not require cause . . . ?8 Article 11, section 8 states that ?Procedures and grounds for recall shall be prescribed by the legislature.? Recall Dunleaiy v. SOA, Div. 0f Elections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 37 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE (901) 209-5100 ?petty grounds? or the ?most minor misdemeanor,? preferring criteria that would not subject of?cials to the nuisance and distraction of recall proceedings for inconsequential reasons. The delegates? deliberate determination that recall in Alaska should only be for acts or omissions that are consequential should inform the Court in determining whether an allegation meets the statutory recall criteria. The reason that the delegates rejected violations of laws that do not impact the govemment?s functions or the public is clear. If an act that causes no harm and has no lasting impact were a suf?cient basis for recall, then Alaska would be a ?for-cause? recall state in name only; in reality it would effectively have a no-eause, purely political recall. Political opponents would need only to state a technical violation as a pretense for policy disagreement. For example, political opponents could cite a governor?s late judicial appointment?-even if the late appointment was made before the judge?s seat became vacant and created no delay in judicial service?when the real basis for a recall committee?s dissatisfaction with the elected of?cial is something political such as disagreement with the of?cial?s attempts to reconcile state spending with revenue. Similarly, a committee could cite a governor?s failure to issue a proclamation to commemorate Women Veterans Day,119 Dutch Harbor Remembrance Day,120 or Alaska Territorial Guard Day121 as a neglect of duty. But interpreting these omissions as neglect of duty would undermine the delegates? intention not to permit ?low-bar? recall and ?9 AS 44.12.078. '20 AS 44.12.085. AS 44.12.083. Recall Dunieavy v. SOA, Div. 0f Elections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 38 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 PHONE: (907) 269-5100 ANCHORAGE, ALASKA 99501 0 create a very different recall scheme. Given that the number of voters needed to initiate a recall is well below the number of voters who might support a losing candidate in the general election, it is important to honor the delegates? intention that recall not be based on an inconsequential matter. A lessor de?nition would simply enable losing political factions to force a redo of a duly conducted general election. The committee rejects the idea that a harmless act or omission does not meet statutory criteria. It argues that the requirement that the allegation be more than a technical violation is ?found nowhere in recall law? and would ??wrap the recall process in such a tight legal straitjacket? . . . that virtually no elected of?cial could ever face recall for neglect of duties.?122 The former argument is belied by the convention delegates? clear intent that the constitution?s recall ?grounds? not include insigni?cant violations. The latter argument is simply hyperbole; identifying some level of harm is not dif?cult. An allegation of an act that shows harm would be, for example, that the governor failed to timely appoint a judge, that the late appointment left the seat vacant, and that the vacancy resulted in excessive workloads for other judges. Allegations that Alaska courts have found to be suf?cient have either stated the harm or involved acts where the suf?ciency of the allegation was self-explanatory. In Meiners, in alleging that school board members failed to perform prescribed duties, the committee alleged facts that identi?ed the resulting harm. In alleging the school board?s failure to control the superintendent?s administrative practices, it identi?ed his ?large 122 Plaintiff?s Motion at 13 (quoting Meiners, 687 P.2d at 301). Recall Dunleavy v. 80A, Div. 0f Elections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 39 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE (907) 269-5100 appropriation of district funds . . . for non-district, non-students, and non-educational programs,? and provided examples of particular acts including a $230,000 appropriation to the adventure-based education program of another school districtm In Coghill, the allegations included incompetence based on the Lieutenant Governor?s public acknowledgment that he had not even read the election laws.124 Although the petition did not spell out why this was more than a technical ?aw, the reason is clear. One of the primary duties of the Lieutenant Governor in Alaska is to ?control and supervise the division of elections.?125 The tOp election of?cial running the elections must have familiarity with the relevant laws in order to meet this responsibility. As the court stated, ?Knowledge of the election laws is directly related to Coghill?s duties as Lieutenant Governor, analogous to a building inspector?s ignorance of the building code, a chemist?s lack of knowledge of the periodic table, or a litigator?s ignorance of the rules of civil procedure.?126 The committee did not state in its application that the governor left the Palmer superior court seat vacant in violation of his constitutional duty to ?ll judicial vacancies. Instead, it alleged only that the governor missed the 45-day statutory deadline to appoint a judge. But, it is not self?evident that the failure to timely appoint a judge to a seat that may or may not be vacant is harmful. The committee argues in its motion that the ?23 Meiners, 687 P.2d at 291. 124 Cog/1i?, 4AF-92-1728CI at 20. '25 AS 15.10.105. ?26 Coghill, 4AF-92-1728CI at 22. Recall Dunleavy v. SOA, Div. 0f Elections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 40 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE (907) 269-5100 govemor?s late appointment is consequential because it might discourage some candidates from applying for judicial seats.127 But this post-hoe justi?cation is sheer speculation rather than indisputable inference. The application alleges that the governor made a late appointment, not no appointment to a vacantjudicial seat. The allegation in paragraph one of the petition does not state a suf?cient ground for recall. C. The allegations of Paragraph 2 lack suf?cient factual particularity. The recall committee submitted as its second allegation that: 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. This paragraph lacks the necessary factual particularity to support a recall. The claim ?[s]tripped of conclusory labels?"28 boils down to an allegation that the governor ?authoriz[ed] and allow[ed] the use of state funds to purchase electronic advertisements and direct mailers? making statements about unidentified individuals. Without more detail, this allegation does not describe an illegal act. Without any information about either the statements or the individuals, neither the voters nor the division nor this Court can conceivably evaluate whether the alleged advertisements and mailers violated either ?27 Plaintiff?s Motion at 21. '23 Coghz'll, 4FA-92-1728CI at 23. Recall Dunleavy v. SOA, Div. 0f Elections, Fennmr?ai Case No. 3AN-19-10903 CI Opp. to Plaintiffs MSJ/Cross Motion for Summary Judgment Page 41 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE. ALASKA 99501 PHONE: 269-5100 the Executive Branch Ethics Act129 or any part of Alaska?s campaign ?nance laws,I30 both of which are cited in the list of references. It therefore does not state a claim that implicates any of the statutory recall criteria. The lack of factual particularity is fatal to this allegation because both the prohibitions in the Executive Branch Ethics Act and the campaign ?nance laws involve fact-speci?c inquiries. For example, the claim that the governor ?misused state funds? by ?using state funds for partisan purposes? appears to be an allegation that he violated AS but the facts are insuf?cient to establish this. The statute provides in relevant part: A public of?cer may not . . . use or authorize the use of state funds, facilities, equipment, services, or another government asset or resource for partisan political purposes . . . [I]n this paragraph, ?for partisan political purposes? (A) means having the intent to differentially bene?t or harm a candidate or potential candidate for elective of?ce; or (ii) political party or group; (B) but does not include having the intent to bene?t the public interest at large through the normal performance of of?cial duties. Any analysis of an alleged violation of this statute requires at least some allegations about exactly what was said and about whom. But the only factual information is that state funds were used ?to purchase electronic advertisements and direct mailers making statements about political opponents and supporters.? That ?29 AS 39.52. ?30 AS 15.13. Recall Dunleavy v. 80A, Div. 0f Elections, Fenumz'az' Case No. 3AN-19-10903 CI Opp. to Plaintiff MSJ/Cross Motion for Summary Judgment Page 42 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE. ALASKA 99501 PHONE: (907) 269-5100 allegation does not indicate whether the communications at issue were intended ?to differentially bene?t or harm a candidate or potential candidate? or party, and it does not indicate that the communications were not ?intended to bene?t the public interest at large.? Thus, the factual de?ciency also creates a legal de?ciency. This allegation presents the very same issue that the Supreme Court considered in van Stau??enberg. In that case, the court reviewed two allegations of a recall committee stating that school board members had violated Alaska law by meeting in ?an improper, closed-door executive session, in violation of Alaska Law,? to discuss retention of a school employee'? Alaska law expressly permits school boards to meet in executive session in certain circumstances ?speci?cally, while discussing certain personnel issues?so the court found that the allegation was legally insufficient.132 And because this conduct was permitted in certain circumstances, the court also found that the allegations lacked suf?cient particularity in failing to explain why the executive session violated Alaska law.133 It was not enough for the recall committee to characterize the meeting as ?improper? and ?in violation of Alaska Law??the court analyzed whether the facts alleged ?constitute[d] a primafacie showing of [the statutory The same problem also exists here with the committee?s allegation that funds von Stau?imberg, 903 P.2d at 1057. ?32 Id. at 1060. 133 Id. I34 Id. at 1059-60. Recall Dunleavy v. 50A, Div. Elections, enumz?ai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 43 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE. sums zoo ANCHORAGE, ALASKA 99501 PHONE (907) 269-5100 0 were spent ?without proper disclosure,? because without more information about the substance of what was said about whom in the advertisements and mailers, it is impossible to evaluate whether they violate any of the statutes in AS 15.13. And, absent any primafacie showing that the advertisements and mailers in question violated the law, this allegation fails to establish any of the alleged grounds for recall. Authorizing advertisements and mailers by itself is not neglect of duty, incompetence, or lack of ?tness under any conceivable de?nition of these grounds. Comparison with factual allegations found to be suf?cient in other cases is instructive. For example, in Meiners the recall petition included speci?c instances of the school superintendent?s misuse of district funds and speci?c occasions when the board allegedly violated ?state public records and public meeting laws.?135 And in Vaiiey Residents, the application identi?ed speci?c legislative acts and votes that were alleged to be corrupt.?36 In contrast, the allegations here include no information about these advertisements or mailers other than the conclusory claim that they included ?partisan statements about political opponents and supporters? and were intended for ?partisan purposes.? No other information is provided. The opponents and supporters are not identi?ed. The partisan statements are not quoted or even paraphrased. Without this detail, the Governor does not have ?a fair opportunity to defend [his] conduct in a '35 Meiners, 687 P.2d at 291-92, 300-01. '36 Valley Residents, 3AN-04-06827CI at 2. Recall DunZeavy v. SOA, Div. 0f Elections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 44 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE, sun's zoo ANCHORAGE. ALASKA 99501 PHONE (907) 269-5100 rebuttal.??37 And the voters have no way to evaluate whether the allegations are true and, if true, whether they warrant removal. No doubt recognizing the inadequacy of the allegations in the application to make out a prima facie case for recall under any of the statutory grounds, the committee does not even argue this point, instead claiming that cannot be disputed that the Governor is on notice regarding which political communications violated the law, and and then offering nearly eight pages of additional alleged facts and explanation about how and why those additional alleged facts meet the statutory criteria for recall.?39 But as explained above,140 the purpose of the allegations in a recall application is not only to give notice to the targeted of?cial, but also to allow the division and the courts to evaluate the adequacy of the grounds and to inform the voters properly about the bases for recall. And, if the recall process provided a means for the Governor to respond other than a rebuttal statement at the special election, perhaps the extent of his ?notice? might not be as ?undisputed? as the committee claims. Thus, it is entirely inappropriate for the committee to rely on their own self-serving assertions about what the Governor is or is not aware of in order to justify their own failure to provide any speci?c factual allegations to which the Governor can respond. Nor may the committee justify their failure to provide any speci?c facts related ?37 Meiners, 687 P.2d at 302. ?33 Plaintiff?s Motion at 23. ?39 See Plaintiff?s Motion at 24-31. '40 See Section IV.A.4, supra. Recal! Dunleavy v. SOA, Div. 0f Elections, Fenumr'ai Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 45 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE. ALASKA 99501 PHONE (907) 269-5100 to this ground by claiming that would have been impossible to provide this detail within the ZOO-word limit of the recall application.?141 Both recall sponsors and recall targets are limited to a ZOO-word statement. If it were actually impossible for the committee to provide suf?cient facts to describe what the governor allegedly did within the ZOO-word limit, then perhaps it should have challenged the constitutionality of the recall statutes?something it has not done. In any event, if the committee?s complaint is correct, it is hard to see how the governor could have a meaningful opportunity to defend his conduct within that same limit. Finally, the committee asserts that ?even without this [additional] detail, there can be no plausible claim that, viewed in the light most favorable to the recall applicants, the application is impermissibly vague in alleging the Governor was involved in the purchase of advertisements with state money, his purpose was partisan, and the advertisements were therefore illegal.?142 But the de?ciency is not that the allegation is ?impermissibly vague,? but rather that the allegation does not include any actual facts beyond the statement that the governor authorized the use of state funds to pay for electronic advertisements and mailers, and this by itself is not illegal. And as in van Stau?enberg, where the court gave no weight to the committee?s mere assertions that the executive session was ?improper? and illegal,'43 and as in Coghill, where the court disregarded the ?conclusory? assertions that the of?cial?s conduct was ?unethical? 14' Plaintiff?s Motion at 24. I42 Id. ?43 Von Stau?enberg, at 1059-60. Recoil Dunleaw v. SOA, Div. 0f Elections, Fenumz'ai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s Motion for Summary Judgment Page 46 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE, sums zoo ANCHORAGE. ALASKA 99501 PHONE (907) 269-5100 C) and ?unprofessional,""I44 the legal conclusions of the recall committee here- that both the governor?s purpose and the statements made were partisan?are not entitled to any deference.I45 Thus, just as the Alaska Supreme Court could not determine from the facts in the petition in van Stau??enberg whether the school board had or had not violated the Open Meetings Act, here the facts are insuf?cient to state a primafacie case that the governor violated either the Executive Branch Ethics Act or Alaska?s campaign ?nance disclosure laws.I46 Without factual allegations that support the legal conclusion that the governor violated the law, this allegation cannot make out a case of any ground for recall. D. Paragraph 3 of the application lacks suf?cient factual particularity and contains legal errors. The recall committee submitted as its third allegation that: Governor Dunleavy violated separation-of-powers by improperly using 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. This allegation lacks suf?cient factual particularity because it does not identify any speci?c line-item veto made by the governor, much less explain how that veto violated the separation of powers. The application includes references that suggest the vetoes at issue may have involved the ?appellate courts, university, AHFC, [and] Medicaid Services,? but this does not adequately inform either the voters or the I44 Coghill, 4FA-92-1728CI at 23. 145 Id. at 1060. I46 10?. Rear? Dunleavy v. SOA, Div. 0f Elections, Fenumz'az? Case No. CI Opp. to Plaintiffs MSJ/Cross Motion for Summary Judgment Page 47 of 57 DEPARTMENT OF LAW OFFICE OF THE GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE. ALASKA 99501 PHONE: (907) 269-5100 C) governor why these particular vetoes warrant recalling him from of?ce. The claim that Governor Dunleavy used his veto to ?attack the judiciary and the rule of law? is conclusory and devoid of any factual information that would allow the voters to evaluate his conduct and assess whether they believed it violated the separation of powers doctrine. Equally problematic, absent a factual allegation about a particular use of the line-item veto, the governor has no way to respond or offer any kind of defense or explanation of the veto within the ZOO-word limit. Once again, instead of attempting to show how the language of the application provides suf?cient information either to inform voters or give the governor a ?fair opportunity to defend his conduct,??7 the committee uses eight pages in its motion to provide additional factual allegations and argument about the governor?s use of the line- item veto to reduce the court system?s budget.148 But the application itself does not even allege that the governor vetoed any part of the court system?s budget, much less say why he did so. And the Alaska Constitution expressly gives the governor the discretion to veto items of the budget?including appropriations to the court system. The application is thus plainly de?cient: it provides no factual information at all and therefore does not state a primafacie case for violation of anything, much less the separation of powers given the unambiguous grant to the governor of the power to veto ?47 van Stau??enberg, 903 P.2d at 1060 (quoting Meiners, 687 P.2d at 302). ?48 Plaintiff?s Motion at 32-40. Recall Dunleavy v. SOA, Div. 0f Elections, Fenumiai Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 48 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE, sums zoo ANCHORAGE, ALASKA 99501 PHONE: (907) 239-5100 appropriations found in Article 11, section 15 of the Alaska Constitution.149 It also leaves the voter to guess at the issue and denies the governor a ?fair opportunity to defend his conduct.? The second part of this allegation?- that the governor used his veto to ?preclude the legislature from upholding its constitutional Health, Education and Welfare responsibilities??is equally de?cient. No speci?c vetoes are identi?ed, nor is any explanation offered as to why or how a line-item veto could preclude the Legislature from doing anything. Indeed, the claim that the governor violated the separation of powers with respect to the Legislature by using his line-item veto is legally unsupportable and ignores the constitutional appropriations process. The power to veto line items in an appropriation bill is unquestionably assigned to the governor by article 11, section 15 of the Alaska Constitution. And the Legislature retains the power to override that veto as provided for in article 11, section 16. Thus, it is legally incorrect to claim that the governor could use his line-item veto to preclude the Legislature from ful?lling its constitutional responsibilities. The Legislature always retains the ability to override any veto.150 Moreover, the governor has broad discretion when exercising his line-item veto ?49 The doctrine of separation of powers is violated when one branch of government attempts to exercise a power given by the constitution to a different branch of government. See Bradner v. Hammond, 553 P.2d 1, 3-8 (Alaska 1976). Absent an allegation that the governor?s veto prevented either the legislative orjudicial branches from ful?lling their constitutional function or exercising their constitutional powers, the committee has not made out a primafacie case of violation of the separation of powers. '50 Alaska Const. art. 11, 16. Recall Dunleavy v. SOA, Div. 0f Elections, enumiai Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 49 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907) 269-5100 authority; the constitution requires only that he state his objections.ls 1 And, as the Alaska Supreme Court found in von Stau?enberg, ?where recall is required to be for cause, elected officials cannot be recalled for legally exercising the discretion granted to them by law.? '52 Because the governor has the discretion to veto items of the budget, the allegations in paragraph 3 of the application do not make out a prima facie case of any of recall grounds. In its motion for summary judgment, the committee again ignores the actual language of its application that cites the governor?s alleged preclusion of the legislature from ?upholding its constitutional Health, Education and Welfare responsibilities,? and focuses instead on a slew of additional factual allegations which this Court may not consider.?53 Notably, on this issue, the committee does not even limit its argument to additional facts about the original allegations, but in fact relies on events that occurred after it began to collect signatures in order to justify its claim that the governor is incompetent and unfit.154 But this Court cannot import into the language of the application alleged facts that had not even happened at the time it was drafted. This argument is completely improper and should be stricken. '51 Alaska Const. art. 11, 15 provides: ?The governor may veto bills passed by the legislature. He may, by veto, strike or reduce items in appropriation bills. He shall return any vetoed bill, with a statement of his objections, to the house of origin.? ?52 von Stau?enberg, 903 P.2d at 1060 (citing Chandler v. Otto, 693 P.2d 71, 74 (Wash. 1984)). '53 Plaintiffs Motion at 40-48. ?54 Id. at 46-47. Recall Dunleavy v. SOA, Div. 0f Elections, Fenumiai Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 50 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE, ALASKA 99501 PHONE (907) 269-5100 0 Further, the committee relies on a novel interpretation of the scope of the governor?s veto power and the meaning of Article VII of the Alaska Constitution in arguing that this claim is suf?cient. The committee theorizes ?rst that Article provisions that direct the legislature to ?provide for the promotion and protection of public health? and to ?provide for public welfare? requires some unspeci?ed minimal level of public funding155 and, second, that the governor ?cannot constitutionally wield his veto power to preclude the legislature from ful?lling that duty??6 But even if the constitution requires minimal levels of public funding for certain government functions, the convention delegates surely did not intend to mandate state participation in programs like Medicaid that did not even exist when the Alaska Constitution was adopted.?57 Thus, even considering the additional factual allegations about speci?c vetoes provided in its motion for summary judgment, the committee has not made out a primafacz?e case that the governor?s vetoes reduced state spending below any constitutional minimum that might exist. Moreover, the Legislature has always retained the ability to override the governor?s vetoes, so to the extent the Legislature has a constitutional responsibility to maintain a minimum level of funding for any services, the governor can never prevent that with the use of his veto power. Finally, the committee claims that ?this court does not need to decide whether Governor Dunleavy?s vetoes actually violated separation of powers by treading 45. ?57 See Social Security Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286. Recall Dunleavy v. SOA, Div. 0f Elections, Fenumz'al Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 51 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE, SUITE 200 ANCHORAGE, ALASKA 99501 PHONE (907) 269-5100 legislature?s af?rmative duties to provide for the health, education, and welfare of Alaskans,? but this is plainly wrong under controlling Alaska Supreme Court recall cases.?58 In von Stauffenberg, the recall petition alleged that the school board had held an ?improper, closed door executive session, in violation of Alaska law.? The Court analyzed this claim and expressly determined that ?the of?cials whose recall was sought did not violate Alaska law as alleged in paragraphs one and and, as a result, the Court rejected the petition as ?lack[ing] suf?cient particularity? because ?the allegations fail to state why entering into the executive session was violative of Alaska law.?160 In other words, in order to determine whether the school board?s alleged conduct made out a prima facie case of failure to perform prescribed duties, the Court had to decide whether the alleged conduct constituted a violation of Alaska law. It is the primary function of this court?s review to determine whether the facts as alleged in the application, taken as true, show that the governor?s actions actually implicated one or more of the statutory criteria for recall. And this Court cannot do that here without determining ?rst whether a governor could violate the separation of powers by using his veto to infringe on the Legislature?s responsibilities to adequately fund speci?c state services, and, if that is possible, second, whether the allegations in the application include suf?cient facts to show how the governor?s vetoes had that effect. If the application lacks suf?cient factual allegations to permit this analysis?or if ?58 Plaintiff?s Motion at 48 (emphasis added). ?59 von Stau?enberg, 903 P.2d at 1060 (emphasis added). I60 Id. Recall Dunleavy v. SOA, Div. 0f Elections, Fenumz'az' Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 52 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE. SUITE zoo ANCHORAGE. ALASKA 99501 PHONE (907) 269-5100 0 it is predicated on an erroneous statement of the law regarding the separation of powers or constitutional funding minimums?uthere is no way for the application to make out a prima facie case for incompetence, lack of ?tness, or neglect of duty. Here, the committee has not alleged facts necessary to support its separation of powers claim and, moreover, that claim is based on erroneous statements of law; therefore this Court must af?rrn the division?s denial of certi?cation. E. The mistaken?but corrected?veto identi?ed in paragraph 4 of the application does not allege facts that are suf?cient to subject the governor to recall under any of the criteria. The recall committee submitted as its fourth allegation that: Governor Dunleavy acted incompetently when he mistakenly vetoed approximately $18 million more than he told the legislature in of?cial communications he intended to strike. Uncorrected, the error would cause the state to lose over $40 million in additional federal Medicaid funds. The recall committee alleges that the Governor?s mistaken veto of Medicaid funds is a suf?cient basis for recall. The committee bolsters this position with audacious additional facts not included in its statement of grounds: It claims that these criteria are met because executive who makes such dramatic funding choices, without consulting impacted agencies?and without considering the impact to tens of thousands of Alaskans?acts inappropriately and is incompetent and un?t for Of course, these additional ?facts? are not part of the allegation in the application, so they cannot be considered as support for it, and could not even if they 15' Plaintiff?s Motion at 53. Recall Dunleavy v. SOA, Div. 0f Elections, enumiar? Case No. CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 53 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE, surrE zoo ANCHORAGE, ALASKA 99501 PHONE (907) 269-5100 were true. Further, the committee does not even attempt to explain how the statutory criteria apply to its allegation; it simply declares that the governor?s mistake demonstrates neglect of duties, a lack of fitness, and incompetence. The only fact actually included in the allegation is that the Governor mistakenly vetoed money. By stating that ?[u]ncorrected, the error would cause the state to lose? additional ?nds, the allegation indicates?as the recall committee members know to be true?that the mistake was corrected and that no harm occurred. As such, this allegation does not state a claim for incompetence, lack of ?tness, or neglect of duties. The committee de?nes ?incompetence? as lackng the qualities needed for effective action or unable to function properly. ?62 Making a single mistake does not qualify as incompetence under this standard. The committee de?nes ?lack of ?tness? as being unsuitable or inappropriate for of?ce. Again, making a mistake does not qualify as being unsuitable or inappropriate for of?ce. Nor does a mistake qualify as ?neglect of duties.? All three of these criteria could possibly qualify the mistake of an elected of?cial for recall with more, fuller facts, rather than simply a single mistake. The analysis here is similar to the court?s analysis in van Stau?bnberg in that the facts alleged are insuf?cient to state a claim under each criterion. In van Stau??nberg, a recall committee alleged that school board members had violated the law by meeting in a closed-door executive session, and the court found this to be legally insuf?cient because Alaska law '62 Plaintiff?s Motion at 10. Recall Dunleaw v. SOA, Div. 0f Elections, Fenumz'ai Case No. CI Opp. to Plaintiff?s Motion for Summary Judgment Page 54 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE, sums zoo ANCHORAGE, ALASKA 99501 PHONE (907) 259-5100 0 permits this for certain employment decisions.?63 The court also found that the allegation lacked particularity because it did not explain why the executive session violated Alaska law.I64 Similarly, here, a series of mistakes indicating that an of?cial is unquali?ed for the responsibility of the of?ce could rise to incompetence. Mistakes based on an of?cial?s primary focus on other, inappropriate matters could indicate a lack of ?tness. A serious mistake based on an of?cial?s long-term unavailability or amount of time spent on non-of?cial conduct could state a claim of neglect of duties. But the committee did not allege facts such as these that could make a claim under the statutory criteria, and a single mistake made during the conduct of the of?cial?s duties is not suf?cient under any of them. Everyone makes mistakes, after all. As in van Stau?nberg, the allegation is either legally insuf?cient to a claim under the criteria or lacks the factual particularity to demonstrate its suf?ciency. The recall committee believes that a single mistake is enough to constitute neglect of duties because it claims that is up to the voters to decide whether a particular failure to act constitutes a neglect of duty suf?cient to warrant removal from of?ce.?165 But this is a misstatement of the law that, were it correct, would eliminate the court?s role to determine whether the facts alleged state a claim under the law. The committee bases its claim on language in Meiners, but review of that language shows ?63 903 P.2d at 1060. 164 Id. ?65 Plaintiff?s Motion at 12. Recal! Dunleavy v. SOA, Div. OfEZections, Fenumiai Case No. BAN-1940903 CI Opp. to Plaintiff?s MSJi'Cross Motion for Summary Judgment Page 55 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 W. FOURTH AVENUE, SUITE 200 ANCHORAGE, ALASKA 99501 PHONE (907) 289-5100 that the committee is con?ating the issue of how to de?ne an of?cial?s duties with the issue of how to de?ne the grounds for recall. In Meiners, the court considered whether certain omissions of school board members were ?prescribed duties? that they had failed to perform, because the application did not cite speci?c laws that required those duties. The court determined that the school board members had a duty to follow statutes of general application related to education, and decided that the petition could refer to failure to perform speci?c conduct without citing laws requiring that conduct.?56 Based on these premises, the court determined that the voters could decide whether the failures cited in the allegations were part of the school board members? jobs?? But the question there was how to determine the ?prescribed duties? for school board members that ?a recall petition must allege a failure to performde?ne the ?failure to perform? them, which in essence would have transferred the determination of legal suf?ciency to the voters rather than to the court. This issue therefore is not analogous to the issue in this case. Here the question is whether a single harmless mistake constitutes neglect of duties; it is not whether vetoing an appropriation is part of the governor?s duties. Determining whether the facts alleged state a claim under the statutory grounds is a function for the court, not the voters.?68 And, as discussed above, leaving to the voters the question of whether an of?cial?s act should be grounds for recall was considered and rejected by the delegates. '66 Meiners, 687 P.2d at 300. '67 Id. at 301. ?68 See Meiners, 687 P.2d at 300; von Stauff?nberg, 903 P.2d at 1060. Recall Dunleavy v. SOA, Div. Of Elections, enumiai Case No. CI Opp. to Plaintiff? MSJ/Cross Motion for Summary Judgment Page 56 of 57 DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL ANCHORAGE BRANCH 1031 w. FOURTH AVENUE. SUITE 200 ANCHORAGE, ALASKA 99501 PHONE: (907) 269-5100 Delegate White proposed that voters should be able to determine their own grounds in each petition, ?and let the case stand or fall on the This proposal failed. The recall committee here argues something similar?that the voters should decide how to de?ne neglect of duties, lack of ?tness, and incompetence. That was not what the delegates intended, and no caselaw supports this approach. VI. CONCLUSION For the reasons stated above, the Court should grant the State?s Motion for Summary Judgment and deny the committee?s motion. DATED December 16, 2019. KEVIN G. CLARKSON ATTORNEY GENERAL By: H'fi . Margaret Paton-Walsh Assistant Attorney General Alaska Bar No. 0411074 169 2 PACC 1238 (January 5, 1956)- Recall Dunleary v. SOA, Div. Of Elections, Fenumiai Case No. 3AN-19-10903 CI Opp. to Plaintiff?s MSJ/Cross Motion for Summary Judgment Page 57 of 57 HOLMES WEDDLE 8: Elm, PC 70: wesraoma moms: ax ?sol-we IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE RECALL DUNLEAVY, an unincorporated association, Plaintiff, v. STATE OF ALASKA, DIVISION OF ELECTIONS, and GAIL FENUMIAI, DIRECTOR, STATE OF ALASKA, DIVISION OF ELECTIONS, Defendants. STAND TALL WITH MIKE, an independent expenditure group, Intervenor. Case No. 3AN- 19-10903 CI MOTION DGMENT Plaintiff Recall Dunleavy moves for summary judgment because, as amatter of law, its recall application states proper grounds and the Division of Elections erred in rejecting the application. By re?ising to certify the recall application, the Division and its Director, Gail Fenumiai, (collectively ?Defendants?) wrongfully denied the citizens of Alaska the opportunity to lawfully exercise their ?mdamental right to petition for the recall of the Governor, as guaranteed by article XI, section 8 of the Alaska Constitution. Motion for Summary Judgment Recall Dunleaw v. State ofAIaska, Division of Elections Page 1 Of 55 Case No. SAN-194090301 Exhibit A Page 1 of 4] HOW WEDDLE a: 7m in more detail below, there is no question that all grounds are alleged in the petition application with suf?cient particularity such that the Governor is on notice regarding what actions are at issue in this case. ARGUMENT A. The Allegation That Governor Dunleavy Violated Alaska Law By Refusing To Appoint A Judge Within 45 Days Of Receiving Nominations Is A Legally Suf?cient Ground For Recall. 1. Factual basis for this claim The Alaska Constitution places considerable importance on the selection of judges.? Alaska?s extensive application, interview, nomination, and appointment process strives to ensure that only the ?most quali?ed" applicants are nominated for appointment ?5 Alaska Const. art. IV, ?5 (?The governor shall ?ll any vacancy in an of?ce of supreme court justice or superior court judge by appointing one of two or more persons nominated by the judicial conned"); Alaska Const. art. 1V, 8 (establishing the judicial council); see Walter L. Carpeneti Brett Frazer, Merit Selection of Judges in Alaska: The Judicial Council, The Independence ofrhe Judiciary. and the Popular Will, 35 ALASKA L. REV. 205, 206 (Alaska 2018) (explaining the judicial selection process, where the Alaska Judicial Council ?focuses on merit" to ?seek the best available timber? to send to the governor." (quoting Proceedings of the Alaska Constitutional Convention (PACC) at 594 (Dec. 9, 1955?); see also id. at 209-20 (discussing the ?-amers' rationales and debates when creating Alaska?s judicial nominee and appointment framework). Motion for Summary Judgment Recall Dunlemy v. State of Alaska. Division of Elections Page 16 of 55 Case No. 3AN-19-10903CI Exhibit A Page 2 of 4] HOLMES WEDDLE to the bench."5 The framers of Alaska?s Constitution created this enduring structure to ensure that merit, not politics, would guide Alaska?s judicial selection process.? The Alaska Judicial Council (?the Council?) announced two vacancies for the Palmer Superior Court in September 2018.5I After processing and vetting l3 applications for the positions,? the Council nominated three candidates and delivered their names to Governor Dunleavy on February 4, 2019.? Article IV, section 5 of the Alaska Constitution provides that ?[t]he governor shall fill any vacancy in an of?ce of . . . superior court judge by appointing one of two or more persons nominated by the judicial council."61 Alaska Statute 22.10.100 codi?es this duty and provides that ?[t]he governor shall ?ll a vacancy or appoint a successor to ?ll 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 5? See Alaska Judicial Council Bylaws art. I, 1 (2013); Alaska Judicial Council Bylaws art. VII, 4 (2013); see also Teri White Cams Susie Mason Dosik, Alaska 's Merit Selection of Judges: The Council 's Role. Past and Present, 35 ALASKA L. REV. 177, 179, 1 82-85 (Alaska 201 8) (discussing the creation and implementation of the ?most quali?ed? standard for nominating judges). ?7 Carpeneti Frazer, supra note 55, at 207 (?An enduring concern of the majority of the [constitutional] delegates was injecting politics into the selection of judges." (citing PACC at 584, 589, 593-94 (Dec. 9, 1955)?; see id. at 210 to the Constitutional Convention were uniformly concerned that party politics or special interests might pollute Alaska's judiciary." (citing PACC at 596, 598 (Dec. 9, 1955)?. . 5? Press Release, Alaska Judicial Council, Judicial Vacancy Announcements (Sept. 7, 2018), 9vacanciesh9-7-l 8.pd f. ?9 l?recs Release, Alaska Judicial Council, Announcing Applicants (Oct. 15, 2018), 9applicants_10-lS-l 8 .pdf. 6? Press Release, Alaska Judicial Council, Palmer Superior Court Judicial Vacancies Third Judicial District (Feb. 4, 2019), 6' Alaska Const. art. IV, 5 (emphasis added). Motion for Summary Judgment Recall Dunleaty v. State of Alaska, Division of Elections P33: 17 0f 55 Case No. 3AN-19-10903CI Exhibit A Page 3 of 4] Ham mm PC 701 warm museum 700 ANCHORAGEAK by the council for each actual or impending vacancy.?62 Governor Dunleavy therefore had a statutory duty to ?ll both vacant Palmer Superior Court positions from the Council?s list of nominees by March 21, 2019.?3 Unlike every other Governor before hinn? Governor Dunleavy refused to follow the law. Instead, while making four otherjudicial appointments on March 21, he left one of the two positions for the Palmer Superior Court un?lled.? Governor Dur?eavy explained his reasons for not complying with the law in a press release and letter to the Council."6 His letter stated that he ?w[ould] not be selecting a second candidate? for the Palmer Superior Court because he believed that the ?ll] list of nomimtedcandidates ?d[id} not appear" ?to be merit and quali?cations based?? Governor Dunleavy then referenced a previous request from his of?ce for ?more information" so that he could ?review and consider the Council?s reasoning to determine whether additional quali?ed candidates could be nominated by the Council for this ?2 AS 22.10.100 (emphasis added). ?3 Id. 6? Carpeneti Frazer, supra note 55, at 220-21 n.l 13 (discussing how, through 2018, such e?'ort?" by a Governor to "bypass? the Council has been successful, including ?the most serious case? in 2004 with then-Governor Frank Murkowski). ?5 See Press Release, Governor Michael J. Dunleavy, Governor Announces Four New Judges, Declines to Fill Vacant Seat Without Additional Information from Judicial Council (Mar. 11, 2019), [hereinafter Governor Announces Four New Judges] alaska. govfnewsroontf201 9103/2 tries-to- (Exhibit 4). 6? Letter from Governor Michael J. Dunleavy to the Alaska Judicial Council (Mar. 20, 2019) [hereinafter Letter to the Council] [Exhibit see also Governor announces Four New Judges Exhibit 5? Letter to the Council (Exhibit 5). The Governor did not expl?in why he held this view or what it was based on. ?3 Id. {Exhibit 5). Motion for Summary Judgment Recall Dunleaw v. State of Alaska. Division of Elections Page 18 of 55 Case No. Exhibit A Page 4 of 41 TOI WEST SUITE 700 ANCHORAGE. AK 99501-3? HOLMES WEDDLE PC Governor Dunleavy issued another press release almost a week later on the still- un?lled Palmer Superior Court judicial position.? In that press release. he recounted a recent meeting with Chief Justice Joel Bolger, the ex?o?icr'o chair of the Council,m and provided a brand new explanation for his failure to appoint a second judge to the Palmer Superior Court: in declining to name a second nominee to the Palmer Superior Court, I announced my intention to better understand the judicial nomination process and to further clarify whether or not the Council was in fact upholding the merit and quali?cations?based standard: My hope was to further review and consider the information before us and ensure this process was thoroughly understood by my of?ce . . . . Based on my discussions with Chief Justice Bolger, my concerns have been satis?ed. I expect to make an announcement on this matter in the near future." Governor Dunleavy did not make an appointment for the second Palmer Superior Court vacancy until April 17, 2019, 72 days after the Council forwarded its list of quali?ed nominees."I2 6g Press Release, Governor Michael J. Dtmleavy, Governor Comments on Judicial Nomination Process Following ?Fruitful and Productive? Meeting with Chief Justice Bolger (Mar. 27, 2019) [hereina?er Governor Comments. on Judicial Nomination Process], aska. govfnewsroom/201 (Exhibit 6). Id. (Exhibit see Alaska Const. art. IV, 8 ("The chief justice of the supreme court shall be ex-of?cio the seventh member and chairman of the judicial Governor Comments on Judicial Nomination Process (Exhibit 6). 11 Press Release, Governor Michael J. Dunleavy, Governor Fills Palmer Superior Court Seat. (Apr. 17, 2019}, 9/04}! court-seat}. Motion for Summary Judgment Recall Dunleavy v. State ofAlaska. Division of Elections Page 19 0f 55 Case No. BAN-194090301 Exhibit A Page 5 of 41 {907) 224-0666 FACSME [907] 2774657 Home WEDDLE 8:13am, PC 701 west EIGHTH AVENUE suns 700 mar-am 2. Governor Dunleavy?s failure to appoint a superior court judge within the mandated timeframe constitutes neglect of duties. Governor Dunleavy?s refusal to appoint a Palmer Superior Court judge within the mandatory 45-day time?'ame clearly violates the law and constitutes a neglect of duties. 73 Because the Govemor?s obligation to appoint a judge within 45 days of receipt of the nominees from the Judicial Council is a mandatory legal requirement that the Governor has sworn to uphold, his refusal to make the appointment unquestionably constitutes ?honperfomance of a duty of of?ce established by applicable law.?M Attorney General Clarkson?s recommendation against certi?cation concedes the Governor violated the law and that the particularity requirement is met, but argues: (1) only constitutional violations matter; (2) the deadline was a technical procedural requirement that the Governor could ignore; and (3) the violation had no consequence.? None of these defenses to violating the law has any merit or legal support. The deadline in the statutes is not a technicality. It is an essential part of the appointments process that a coequal branch of government imposed to ensure that judicial vacancies are timely ?lled, with very limited political in?uence or pressure. The Governor?s failure to meet the deadline clearly was not a mere oversight. To the contrary, Governor Dunleavy admits that he intentionally refused to respect and (amply with the 1'3 AS 22.10.100. 7? Valley Residents for a Citizen Legislature v. State, Order Regarding Pending Motions, at 9 (Alaska Super. Aug. 24, 2004) (Appendix B). 75 See Att?y Gen. Clarkson 0p. at 1749 (Exhibit 2). Motion for Summary Judgment Recall Dunleavy v. State ofA laska. Division ofElectiorts Page 20 of 55 Case No. Exhibit A Page 6 of 41 .PC TEEPHONE 274-0666 FACSMLE [907i 277-4657 701 WET AVBNE. SUITE Tm ANCHORAGE. Alt HOLMES WEDDLE deadline.? His stated intent was to hold the appointment of a Palmer judge hostage in the hope of forcing the Council to give him preferred nominees and information to which he was not legally entitled. His refusal to uphold and follow the law was an abuse of power and an effort to inject into the judicial appointment process the political considerations that the Alaska Constitution and statutes have long aimed to preclude. The Governor seems to believe he is bound by some laws, but not by others. If so, it is a baseless belief. He cannot arbitrarily pick and choose which laws to follow?he is ?responsible for the faithful execution of the laws? under the Alaska Constitution.? His violation of the law also is far from inconsequential. Politicizing the appointment process is not only unconstitutional. but it risks serious damage to a critical branch of government. Quali?ed applicants may decide not to apply for judicial positions because they are unwilling to submit to a process that converts Alaska?s ?merit-based? selection system into one based on political favor. The mere risk of becoming a pawn in a contrived battle between the Governor and the judiciary is enough to discourage wellr quali?ed applicants ?orn applying. Based on the Governor?s refusal to comply with the law and ful?ll his duty to timely make the Palmer judicial appointment, the recall application alleges a legally suf?cient basis for recall, and Defendants erred in denying certi?cation on this ground. 7? The Governor?s letter to the Council stated unambiguously that he ?w[ould] not be selecting a second candidate" for the Palmer Superior Court because he believed that the full list of nominated candidates ?d[id] not appear" ?to be merit and quali?cations based." Letter to the Council (Exhibit 5). 7" Alaska Const. art. In, 16. Motion for Summary Judgment Recall Dunlemy v. State of Alaska, Division of Elections Page 21 0f 55 Case No. SAN-194090301 Exhibit A Page 7 of 41 Homes Wanna; 7OI wastaoam 5mm no 3. Governor Dunleavy?s failure to appoint a superior court judge within the mandated timel'rame also demonstrates lack of ?tness and incompetence. Governor Dunleavy also demonstrated both ?lack of ?tness? for of?ce and ?incompetence" when he refused to appoint the second Palmer judge within the statutorily mandated time?ame. He contended that he needed additional information about the nominees and the selection process. But if he needed information about the selection process, it was readily available without delaying the appointment. The judicial selection process is codi?ed in law, has been in existence since statehood, and is fully described on the Council?s website. The Governor also has access to advice from the Attorney General and all the lawyers in the Department of Law. Any laclt of information or understanding he may have had about the selection process in no way justi?es violating the law.? To the contrary, ignoring the deadline based on a supposed need for or a refusal to appoint ?om the Council?s list shows an utter ?lack of ?tness" (that he is ?unsuit[ed] for of?ce?) and ?incompetence" (that he ?lack[s] the qualities needed for effective action? and is ?unable to function 7? See Letter to the Council {Exhibit Governor Comments on Judicial Nomination Process (Exhibit 79 Valley Residents, Order Regarding Pending Motions, at 9 (Alaska Super. Aug. 24, 2004) (Appendix Incompetent, MERRIAM-WEBSTER, (last visited Nov. 4, 2019); see also Coghill v. Rollins, Memorandum Decision, 4FA-92-01728CI, at 21 (Alaska Super. Sept. 14, 1993) (de?ning ?incompetence? as ?a lack of ability to perform the o?icial?s required duties?) (Appendix D). Motion for Summary Judgment Recall Dunlemy v. State of Alaska, Division of Elections Page 22 0f 55 Case No. Exhibit A Page 8 of 41 HOLMES WEDDLB PC 7131 wesrnomnavewe mm summer. a: ?screws Plaintiff?s application for recall alleges legally sufficient grounds for recall for failure to timely appoint a judge. The voters can ?nd that this failure constitutes lack of ?tness and incompetence. B. The Allegation That Governor Dunleavy Violated The Executive Branch Ethics Act And Campaign Finance Laws By Using State Funds For Partisan Political Purposes States A Legally Suf?cient Ground For Recall. l. Factual basis for this claim The application alleges as its second ground that Governor Dunleavy ?allow[ed] the use of state funds for partisan purposes to purchase electronic advertisements and direct mailers."30 It alleges his actions violated the Executive Branch Ethics Act (?Ethics Act?), Alaska?s campaign ?nance laws, and article IX, section 6 of the Alaska Constitution. Although the Attorney General asserts this is not factually specific enough,81 this allegation easily meets the Alaska Supreme Court?s speci?city requirement: the use of state funds to purchase advertisements for partisan purposes is a very speci?c act?and it is always illegal for a state official to use state funds for partisan politicking. it cannot be disputed that the Governor is on notice regarding which political communications violated the law, and The Governor has suf?cient notice of the allegation and can admit or 3" Statement of Grounds (Exhibit 1). 3' Att?y Gen Clarkson 01). at 20 (Exhibit 2). ?2 This matter was an issue of public discussion in political blogs at the time. See in?a at notes l02- 103 and accompanyrn text. And Heather Hebdon, the Executive Director of the Alaska .Public Of?ces Commission the entity charged with enforcement of Alaska?s campaign ?nance laws, contacted the Governor 3 Of?ce after learning of the mailers to inform the Governor that the communications violated campaign ?nance law for, at a minimum, lacking the required ?paid for by? disclosures. The fact that APOC ultimately decided to give the Governor a ?free pass' 'on this violation does not mean it was not in fast: a violation. Motion for Summary Judgment RecaIIDuniemy v. State ofAlaska, Division ofEIecrions ?is" 23 0f 55 Case No. BAN-19409030 Exhibit A Page 9 of 41 [907] 274-0666 WI 2774657 701 WET EBHTH AVENUE SUE 700 AWGEAK Homes WEDDLE a deny doing it, as he can admit or deny spending funds without making disclosures required by APOC. The discussion that follows provides additional detail, all based on public documents known to the Governor. It would have been impossible to provide this detail within the ZOO-word limit of the recall application. But even without this detail, there can be no plausible claim that, viewed in the light most favorable to the recall applicants, the application is impermissibly vague in alleging the Governor was involved in the purchase of advertisements with state money, his purpose was partisan, and the advertisements were therefore illegal. a. Advertisements on aeebook pages Shortly after his election, Governor Dunleavy set up and continues to run the standard, informational, state?sponsored Governor's Facebook page.33 No legal issue is presented by this Facebook page or its content. But the Governor also opened three additional, issue-speci?c Facebook accounts, and used state funds to pay for what are unequivocally partisan online advertisements on these accounts. The expenditures of state funds on these political advertisements violated the law and are a valid basis for recall. The ?rst of these Facebook accounts is a page entitled ?Restore the that exists to ?[5]upport[] Governor Mike Dunleavy?s efforts to Restore the ?lthough it is '3 See Governor Mike Dunleavy (@GovDunleavy), FACEBOOK {created Nov. 8, 2018). (last visited Nov. 4, 2019). *5 .See- Restore the (@RestorePFD), About, .FACEBOOK, [last visited Nov. 4, 2012) (Exhibit 7). Motion for Summary Judgment Recall ounzeaw v. State ofAiaska, Division afEIecrions Page 24 0f 55 Case No. 9-10903c1 Exhibit A Page 10 of 41 .PC THEM-101E [907] 274-0666 FACSHIE 1907} 277-465? 701 WEST scam AVENUE. 7m ANCHORAGE A: 99501-343 HOLMES WEDDLE characterized as a ?[c]ornmunity" page, the contact information directs site visitors to Governor Dunleavy?s office number and his official government website.85 To date, Governor Dunleavy has spent $18,902 in public funds on partisan advertising through this Facebook page.?5 The state-?rnded ads on this site include two attacking speci?c legislators who disagreed with the Governor: 0 A video shows Senate President Cathy Giessel speaking against funding ?a full accompanied by text stating: ?Not every legislator agrees that Alaskans deserve a full followed by a statement urging people ?to tell lawmakers you support a full I An ad attacks Representative Tammie Wilson, stating that ?she wants to cut the PFD for future generations to pay for government,? then tells people to call her o?ice to say ?there should be no change to the PFD without a vote of the people?" A second Facebook page, entitled ?Repeal 51391," exists to support ?the Repeal of SB 91!?9 No contact information besides Face-book Messenger is listed for this page, although the State of Alaska?s Social Media Policy Nojce is listed in the page?s ?Company Overview."90 Governor Dunleavy has spent $8,173 of public 3? See id. (listing ?(907] 465-3 500? and as contact information) (EXhibit 7). 3-6 Restore the PFD (@RestorePFD), Ad Library, FACEBOOK, page_id=616481278739381 (Ill! visited Nov. 4, 2012) (Exhibit ?33 Restore the PFD (@RestorePFD), Senator Giessel on the PFD, FACEBOOK (May 7, 2019), (last visited Nov. 4. 2019). ?53 Restore the (RestorePFD), FACEBOOK (May 23, 2019), 5;?663 31.50374 101 ?type=3 ththeatcr (last Visited NOV. 1 1,2912) (Exhibit 7), 53 SB 91 About, .FACEBOOK, (last visited Nov. 4, 2019) (?Alaskans for the Repeal of SB (Exhibit 9? Id. (listing (Exhibit 8). Motion for Summary Judgment Recall Dunleaw v. State of Alaska. Division of Elections Page 25 Of 55 Case No. Exhibit A Page 11 of 41 men-lone {907: arc-ow. FACSNIE 19071 277-4657 funds on advertisements through this Facebook page to date, using campaign-style slogans while presenting them as state-sponsored nonpolitical advertisements.? The ads promote Governor Dunleavy personally, not just the position he espouses; for example: ?Alaska is a much safer place now that Governor Mike Dunleavy has signed House Bill 49 and repealed the failed 51391392 The third political Facebook page, entitled ?Cap Government Spending,? exists to support a speci?c constitutional amendment introduced by Governor Dunleavy?S?nate Joint Resolution (SIR) 6??~?which would create a new constitutional spending cap.? This ?[c]ornmunity" page lists Governor Dunleavy?s of?cial government website for its contact information.? Governor Dunleavy has so far spent $3,312 of public funds on advertising through this Facebook page.W The state-funded ads explicitly support Representatives Kelly Merrick and Sara Rasmussen, as well as then-Representative Josh Revak, because they favored SJR 6; the ads also promote petitions favorable to SIR 6 and help supporters 9' See Repeal 8391 (@HakeAlaskaSafe), Ad Library, FACEBOOK, %ZOSB9l&view_all _page__id=613601695770470 (last visited Nov. 4, 2019) (indicating many advertisements are ?Paid for by Governor Mike Dunleavy?) [Exhibit 8). 92 See or. (last visited Nov. 4, 2019) (notion is), 93 See 2019 Senate Joint Resolution No. 6 (sin. 6). 91 See. Cap Government spending (@CapSpending), About, FACEBOOK. (last visited Nov. 4, 2019) (?Cap Government Spending supports Governor Dunleavy?s bill to create a straightforward, understandable, and effective limit on government growth") (Exhibit 9). 95 Id. (listing (Exhibit 9). Cap Government Spending (@CapSpending). Ad Library, FACEBOQK, page?id=21093l6425853875 (last visited Nov. 11, 20l9) (?Paid for by [the] Of?ce of the Governor of Alaska") (Exhibit 9). Motion for Summary Judgment Recall Divalent)! v. State ofAlaska, Division of Elections Page 26 0f 55 Case No. Exhibit A Page 12 of 41 70] WESTEIGHTH AVENUE. SUTE 700 MOE. AK 99501-3? (907] 274-0666 FACSMIE 27?3-?657 Baum wanna: send a form letter in support of SJ 6 to legislators.W Some of these paid advertisements mp on or after Representative Rasmussen and then-Representative Revak filed letters of intent with AFDC to run for re?election in the-2020 state primary election.? b. Physical Mailers In addition to using Facebook pages to support legislators he favors and to attack those he opposes, Governor Dunleavy used state funds to print and distribute campaign- style literature supporting Senator Mia Costello and then-Representative Revak. The mailers were sent to Alaska voters in July 2019,99 after Revak ?led his letter of intent to run for re?election in the 2020 state primary with These mailers asked voters to thank these elected officials for voting for positions that Governor Dunleavy favors (including ?a full ?a smaller budget,? and ?a smaller government"), but the mailers did not disclose who paid for them)? Governor Dunleavy's of?ce has since admitted to spending ?approximatelf? $3,500 in public funds on these political mailers!? As reported in a political blog as the time, APOC determined that the mailers violated the law and ?7 Id. (?Thank [the three representatives listed] for voting to cut the budget and keep government spending in check. [He or she?s] a ?ghter for a permanent ?scal plan. Email . . . or call [his or her] of?ce . . . and say ?thank you?! (Exhibit 9). ?3 See Letter of Intent, Sara Rasmussen (submitted June 24, 2019) (Exhibit 10); Letter of Intent, Joshua C. Revak (submitted June 13, 2019) [hereinafter Revak Letter of intent] (Exhibit 10). 5'9 Email from Matt Shuckerow, Press Sec?y, Of?ce of Governor Michael J. Dunleavy, to Land?eld (July 17, 2019, 6:52 PM) [hereina?er Shuckerow Email] (Exhibit 1 1). 19? See Revak Letter of Intent (Exhibit 10). See Photographs Mailers (Exhibit 12). 102: Shuckerow Email (Exhibit ll); see also Jeff Land?eld, Gov. Dunleaiy?s O?ice Paid for Rep. Kermit and Sen. Costello Mailers, THE ALASKA LANDMINE (July 19, 2019) [hereinafter Land?eld Post], .and-sen-costello-mailerSI. Motion for Summary Judgment Recall Dunleaw v. State ofAIaska. Diwirion of Elections 33" 27 ?f 55 Case No. Exhibit A Page 13 of 41 TELEPHONE (907! 274-0666 [9071 277-4657 Harem mam Barton-11'. PC 70] AVENUE. SUllEm ANCHORAGE. AK 99501-3400 advised the Governor that any such future mailers must include, at a minimum, a ?paid for by" disclaimer.?3 2. Governor Dunleavy?s use of state funds for political activity violated the Executive Branch Ethics Act and Alaska?s campaign ?nance laws. The Ethics Act, which Governor Dunleavy must prohibits ?the use of state funds, facilities, equipment, services, or another government asset or resource for partisan political Partisan political purposes ?means having the intent to differentially bene?t or harm a candidate or potential candidate for elective of?ce; or (ii) political party or group," but ?does not include having the intent to bene?t the public interest at large through the normal performance of of?cial duties.?06 Applying these de?nitions. an executive branch of?cial violates the Ethics Act by ?mding advertisements on websites or in mailers that are intended ?to differentially benefit or harm" speci?c candidates, potential candidates, or political groups, instead of intending ?to bene?t the public interest at The content and nature of these state-paid advertisements expose their partisan purposes. Governor Dmileavy used state ?mds to pay for advertisements on. thre_e different '03 See Af?davit of Scott M. Kendall at 5-6 (Nov. 26, 2019); see also Iand?eld Post. AS 39.52 .910; see also Alaska Const. art. IX, 6 (?No . . . appropriation of public money [shall be] made . . . except for a public purpose?); AS 39.52.010.965; 9 Alaska Administrative Code (AAC) 52010-390. '05 as '06 Id. I07 See id.;.see also Memorandum from Daniel C. Legislative Counsel, Legislative Affairs Agency, Div. of Legal 8: Research to Rep. Zack Fields, at 4 (May 20. 2019) use of public funds for a partisan political purpose is unconstitutional, and therefore not a normal performance of of?cial duties?) (Exhibit 13). Motion for Summary Judgment Recall Dunlemy v. State of Alaska, Division of Elections Page 28 0f 55 Case NO. 9-10903CI Exhibit A Page 14 of 4] HOLMES WEDDLE a: 7m wesracammumasrmm Facebook accounts. These ads: support or oppose speci?c sitting legislators, depending on whether they agreed with him on key issues; (2) tout his accomplishments; and urge one?sided participation in the legislative process. The ads? self-promotion, targeted attacks on named legislators, and focused support of other legislators look like campaign ads because they are; this is clear partisan politicking. For much the same reasons, the campaign-style mailers supporting then- Representative Revak and Senator Costello also violate the Ethics Act; the Governor used state ?mds to differentially bene?t speci?c candidates or potential candidates. The mailers and the Faceboolt ads supporting then?Representative Revak and Representative Rasmussen, who had already announced their plans to run for re-election, also violate Alaska's campaign ?nance laws. Alaska?s campaign ?nance statutes require: (1) a ?clear?? identi?cation of who ?paid for? a communication?? (2) Speci?c language distancing an independent group from a particular and (3) prior registration with The law also expressly prohibits the use of state ?mds ?to in?uence the AS 15.13.090(a) (?All communications shall be clearly identi?ed by the words ?paid for by? followed by the name and address of the person paying for the oonununication.? (emphasis added?. AS 15.13.135(b) 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 eonununication that supports or opposes a candidate for election to public office . . . shall place the following statement in the mailing, literature, advertisement, or other eomnnmication so that it is readily and easily discernable: This NOTICE TO VOTERS is required by Alaska law. (l/we) certify that this is not authorized, paid for, or approved by the candidate"). AS 15.13.050(a) (?Before making an expenditure in support of or in opposition to a candidate . . . each person other than an individual shall register [with Motion for Summary Judgment Recall Dunleaw v. State of A laska, Division of Elections Page 29 0f 55 Case No. 9-10903CI Exhibit A Page 15 of 41 2760666 FACSNIE {9137} 277457 NIWWMAWSWEM HOW WEDDLE outcome of the election of a candidate to a state or municipal of?ce)? Neither the mailers nor the Facebook ads ?clearly? identi?ed (or even attempted to identify) who paid for the communications,'12 or stated that the (in?ame! was not acting on behalf of the candidate?s can1paign;?? and the Governor did not register 1with APOC in advance of distributing these communications,? The recall application states a valid ground for recall, because although the Governor may support candidates, he may not use state ?mds to do so,?5 and he may not otherwise violate the law. 3. Governor Duuleavy?s violations of the Executive Branch Ethics Act and campaign ?nance laws constitute neglect of duty, un?tness for of?ce, and incompetence. The recall application's allegation of Governor Dunleavy?s repeated violations of the Ethics Act and state campaign ?nance laws provides a legally suf?cient ground for recall. One of the Governor?s most obvious duties is to follow the law. Repeated violations of the law therefore constitute neglect of that important duty and, as a result, the allegation in the recall petition states a valid ground for recall15.13.090See Valley Residents for a Citizen Legislature v. State, Order Regarding Pending Motions, at 9 (Alaska Super. Aug. 24, 2004) (accepting the state's de?nition for ?neglect of duty" as being ?the nonperformance of a duty of of?ce established by applicable law.?) (Appendix B). Motion for Summary Judgment Recall Dunlemy v. State ofAlaska. Division of Elections Page 30 0f 55 Case NO. Exhibit A Page 16 of 41 [907} 2700666 FACSIMIE 277-1657 How WEDDLE BANDIT. PC 7m ANCHORAGE. A: near-34m Fitness for office likewise requires respect for and obedience to the law.?T The Ethics Act and Alaska?s campaign ?nance laws draw a clear line prohibiting the use of state funds for personal political purposes.? The campaign ?nance laws establish clear, Speci?c disclosures requirements, which the Governor also rcpeatedly ignored. The allegation in the recall petition thus establishes ??tn?tness? as a second valid ground for recall. Nevertheless, if the Governor claims he did not intend to violate the law er did not realize his actions violated the law, then his repeated violations of the Ethics Act and campaign ?nance laws establish his incompetence. The Governor has access to broad range of legal advisors. .APOC provides training and informal guidance. If Governor Dunleavy failed to avail himself of these resources and acted without seeking advice on how to comply with the law in areas he must know are carefully regulated to prevent abuse of power, then he demonstrated his incompetence?i.e., a ?lack of ability to perform [his] required duties.?("The defendants have de?ned ?lack of ?tness' as unsuitability for of?ce demonstrated by speci?c facts related to the recall target?s conduct in of?ce") (Appendix Transcript of Record at 5-6, C?iZenS?Jr Ethical Gov't v. State, (Alaska Super. Jan. 4, 2006) de?nitions . . . were taken ?our a prior case, . . . Valley Residents . . . [which] de?ned lack of ?tness to be unsuitability for of?ce demonstrated by speci?c facts related to the recall target?s conduct in of?ce . . . (Appendix C). us See Alaska Const. art. IX, 6 (?No . . . appropriation of public money [shall be] made . . . except for a public purpose"). ?9 Coght?li v. Rollins, Memorandum Decision, 4FA-92-01728CI, at 21 (Alaska Super. Sept. 14, 1993) (?Incompetence for purposes of recall must relate to a lack of ability to perform the of?cial?s required duties?) (Appendix D). Motion for Summary Judgment Recall Dunlemry v. State ofAlaska. Division of Elections Page 3' 0f 55 Case No. Exhibit A Page 17 of 41 701 WESTEKEHTHAWSWEM ANCHORAGE. AK ?501-30? HOLMES WEDDLE 8i For all the reasons set forth in this section, this court should determine that the allegation in Paragraph 2 of the recall petition states a valid ground for recall. C. The Allegation That Governor Dunleavy Violated Separation-0f- Powers By Improperly Using The Line-Item Veto To Attack The Judiciary And The Rule Of Law States A Legally Suf?cient Ground For Recall. 1. Factual basis for this claim The Attorney General?s opinion calls the allegation that the Governor ?violated separation-of-powers by impmperly using the line-item veto to attack the judiciary and the rule of law? his opinion also indicates that the Attorney General (and therefore the Governor) knows exactly what speci?c conduct the recall application refers tom As the opinion acknowledges, the full background is well-established by public sources.?2 Governor Dunleavy prepared a proposed budget for FY 2020, which he submitted to the legislature for consideration during the 2019 legislative session. The Governor?s proposed budget requested $7,106,400 for the appellate courts within the Alaska Court ?ystem. '20 Att?y Gen. Clarkson Op. at 22 (Exhibit 2). See id. at 23 n.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 coat of state-funded elective abortions"). 122 There was already a court case ?led challenging the court system veto before the recall' application was even circulated. See ACLU of A laska v. Dunleavy, Complaint for Declaratory and lnjunctive Relief, (July 17, 2019) (challenging the constitutionality of Governor Dunleavy?s court system line-item veto). Motion for Summary Judgment Recall Danica? v. State ofAlaska, Division of Elections 13?3" 32 ?55 Case No. 9-10903Cl Exhibit A Page 18 of 41 274-0666 FAME [907] 277-4657 701 WESTEBHTHAWSWEM Homes Wanna: a The Alaska legislature transmitted the operating budget it passed to the Govemor on June 13, 2019.123 The legislature?s budget included the $7,106,400 that the Governor had requested for the appellate courts!? The legislature's budget also raided 3% additional funding to equalize salaries for the appellate courts? employees to those of their counterparts in the executive branch'25 In the months between the Governor?s proposal to fund the appellate courts and the legislature?s approval of the amount the Governor requested. the Alaska Supreme Court issued its decision in State v. Planned Parenthood of the Great Northwest.? That decision held unconstitutional a regulation adapted by the Department of Health and Spcial Segices in 2013 and a statute passed by the legislature in 2014, both of which limited the availability of Medicaid funding for medically necessary abortions. The Supreme Court held that both the statute and regulation violated the constitutional guarantee of equal protection, because both applied a uniquely onerous de?nition of ?medically necessary" as the standard for funding abortions for Medicaid-eligible women)? Under the statute and regulation, Medicaid-eligible women with medical conditions that made continuing a pregnancy dangerous to their health who chose nonetheless to continue their pregnancies quali?ed for Medicaid coverage of the health care needs their doctors deemed appropriate, '23 See 2019 House Journal 1217-1338, ISSLA 2019 (as amended). 125 Id. 126 436 P.3d 984 (Alaska 2019)- 12?: See id. at 990?91 1000-04. Motion for Summary Judgment Recall Dunleavy v. State ofA iaska. Division of Heart on: Page 33 0f 55 Case No. 3AN-19-10903CI Exhibit A Page 19 of 4] HOW WEDDLE 8: Eamon. PC 70: warm whereas women with the same condition who chose to terminate their pregnancies could not receive Medicaid coverage.12$ The Supreme Court very explicitly limited its decision to medically necessary abortions. The decision does not in any way require the state's Medicaid program to pay for elective abortions. The Court expressly noted that, even under the prior, lengh restrictive de?nitions in statutes and regulations, ?the legislative record contains no evidence that Medicaid had actually funded non-medically necessary abortions.?129 Governor Dunleavy obviously did not like or agree with the Supreme Court?s decision?nor did he understand it. On June 28, 2019, when he issued his line-item vetoes to the appropriations bill passed by the legislature, he reduced the funding to the appellate courts to provide $3 34,700 less than he originally had proposed and that the legislature had His veto message made clear that the sole reason for the reduction in the appellate courts? budget was his disagreement with the Supreme Court?s decision in State v. Planned Parenthood. He wrote: The Legislative and Executive Branch are opposed to State funded elective abortions; the only branch of government that insists on State funded elective abortions is the Supreme Court. The annual cost of elective abortions is re?ected by this redraction.?31 '28 See id. at 1003. Id. at 1004. '30 STATE or ALASKA, times or Mom. BUDGET, Vero CHANGE RECORD DETAILS at 122 (June 28, 2019) [hereina?er JUNE VETO CHANGE RECORD (Exhibit 14). Separately, in this ?rst round of vetoes, the Governor also vetoed tm: 3% that the legislature had added to increase salaries for appellate court staff. Id. (Exhibit 14). 13: Id. (Exhibit 14). Governor Dunleavy apparently fails to understand that the Masks Supreme Court is not, in and of itself, a ?branch of government.? Rather, it is the highest court of the Judicial Branch, which is comprised also of many other courts throughout Alaska. Motion for Summary Judgment Recall Dunlemy v. State of Alaska. Divisiorr of Elections Page 34 0f 55 Case No. 3AN-19-10903CI Exhibit A Page 20 of 41 The line-item veto of a portion of the appellate courts? budget based on disagreement, with a Supreme Court decision demonstrates the Governor?s lack of ?tness for his of?ce. As discussed above, ?lack of ?tness,? as a standard for recall, is demonstrated when an of?cial engages in a speci?c act that manifests unsuitability for of?ce.132 That test is easily met here. The sections that follow show, ?rst, that the line-item veto based on disagreement with the Supreme Comt decision demonstrates un?tness because the veto for that reason was illegal, and, second, that the veto demonstrates un?tness because it was unsuitable for the Governor to manifest such disdain and disrespect for a coequal branch of government performing its constitutional ?xnction. a. The Governor?s line-item veto of funding for the courts- hased on his disagreement with a judicial decision demonstrates his un?tness because it was an intentional illegal act in violation of the separation of powers. The Alaska Constitution is organized ?follow[ing] the traditional framework of American government," with authority distributed by the framers among three distinct branches of governmentm?the executive, the legislative, and the judicial.?33 ?The purposes of the separation of powers doctrine are to preclude the exercise of arbitrary power and to safeguard the independence of each branch of Respect for the constitutional separation of powers ?prohibits one branch ?om encroaching upon and '32 See supra Subsection [1.13.1 at 7-9. 13; Alaska State?Operated Sch. 552s. v. Mueller, 536 P.2d 99, 103 (Alaska l975). '34 Alaska Pub. Interest Research Grp. v. State, 167 P.3d 27, 35 (Alaska 2007) (citing Bradner v. Hammond, 553 P.2d l, 6 (Alaska 1976)). Motion for Summary Judgment Recall Dunleaw v. State ofAiaska, Division of Elections Page 35 ofSS Case No. 9-10903CI Exhibit A Page 21 of 41 HOW WMDLE 8: W. PC 701 wesr scum AVENIE. sure no ram mm 277-4657 exercising the powers of another Respecting the constitutional separation of powers ensures the checks and balances that prevent a ?tyrannical" government.?36 The Alaska Constitution assigns distinct powers to the three branches of government with respect to legislation. The executive and legislative branches, working together in prescribed ways, have the sole authority to enact laws; 37 but that authority is checked by- and is subordinate to?-the power of the judiciary to determine the constitutionality of a law, which means the duty to void a law if it is unconstitutional.'38 With respect to enacting regulations, the legislature may grant such power to the executive branch,139 but that authority, too, is checked by?and subordinate tom?the judiciary?s authority to determine that a particular regulation may not be applied because it is unconstitutional."? ?Any '35 Bradner, 553 P.2d at 5 n.8 (citing Myers v. United States, 272 U.S. 52 (1926); 0153 v. Jordan, 309 P.2d 779 (Ariz. 1957)). '36 Id. at 5 underlying rationale of the doctrine of separation of powers is the avoidance of tyrannical aggandizement of power by a single branch of government through the mechanism of dif?tsion of governmental powers." (citing Cont 'l Ins. Cos. v. Boyless Roberts, Inc. 548 P.2d 398, 41041 (Alaska 1976?). ?37 Alaska Const. art. It, 13-16; Alaska Const. art. 111, 1, 18. ?33 See Alaska Const. art. IV, {5 1;Boucher v. Bomho??, 495 P.2d 77, 79 (Alaska 1972) (?Early in this country?s jurisprudence it was established that we are a government of laws, not of men, and that the task of expounding upon fundamental constitutional law and its application to disputes between various segments of government and society rests with the judicial branch of government.? (citing Marbun; v. Madison, 5 U.S. 137 (1803)?; see also Marbwy, 5 U.S at 177 (?It is emphatically the province and duty of the judicial department to say what the law State, Dep?t of Health Soc. Set-vs. v. Planned Parenthood ofAlaska, Inc, 28 P.3d 904, 913 (Alaska 2001) (?Under Alaska?s constitutional structure of government, ?the judicial branch . . . has the constitutionally mandated duty to ensure compliance with the provisions of the Alaska Constitution, including compliance by the legislature.? (quoting Malone v. Meelo?ns, 650 P.2d 351, 356 (Alaska 1982?). '39 See Boehl v. Sabre Jet Room, Inc, 349 P.2d 585, 586 (Alaska 1960). See State, Dep?t of Fish Game v. Manning, 16! P.3d 1215, 1219-25 (Alaska 2007) (evaluating constitutionality of regulations). Motion for Summary Judgment Recall Dunleaw v. State of Alaska, Division of Elections Page 36 0f 55 Case No. Exhibit A Page 22 of 41 TEEPHOHE 27150666 FACSNIE 2774657 attempt to undermine independent judicial review of agency action cannot be When Governor Dunleavy vetoed a portion of the appellate court?s ?nding because he disagreed with a Supreme Court decision on the constitutionality of both a statute and a regulation, he acted illegally and imprOperly in an attempt to ?overrule? or undermine the. decision requiring the Medicaid program to fund medically necessary abortions. He exercised the kind of arbitrary power and disrespect for the independence of another branch of government that the separation of powers doctrine forbids. The Governor?s action, in refusing to acknowledge and respect the legitimacy of the Supreme Court?s decision. violates the constitutional separation of powers. It is clear that the Governor?s line-item veto of a portion of the appellate courts? budget had nothing to do with a view on how much money the court system needs to operate or how much money the state can afford to provide to the court system. The Governor?s veto message unambiguously stated that the only reason for the veto was an improper one??the Governor?s disagreement with the Court?s decision in the Planned Parenthood case)? The Governor?s message was equivalent to saying to the courts, won?t approve the funds you need unless you decide cases the way want.? If that type of action is tolerated, Alaska will cease to have a truly independent judiciary or mgmual branches of government. Jurists will be reduced to puppets who must render decisions to Alaska Pub. Interest Research Gm, 167 P.3d at 43. "2 .See. June vsro CHANGE aggoan Dames at 12 (Exhibit 14). Motion for Summary Judgment Recall 0mm v. State ofAlaska. Division ofElections 938? 37 0f 55 Case No. SAN-1 9.1090301 Exhibit A Page 23 of 41 WE [907] 274-0666 FACSIMLE {9071 277-4657 ANCHORAGE. AK 99505-3? HOW WEDDLE 8a PC please the executive, if they want to ensure the continued ?inding and operation of the judiciary. b. The Governor?s line-item veto based on a disagreement with the Supreme Court?s decision demonstrates his un?tness because it was unsuitable for the Governor to disp?y such disrespect for the power of the judiciary. The line-item veto of $334,700 from the appellate courts? funding establishes the Governor?s unsuitability for his office, even if the veto was not illegal. To be a suitable head of the executive branch, the Governor must demonstrate respect for the judiciary as a coequal branch of government when the judiciary does nothing more than act as it is constimtionally mandated to do. It is an abuse of power for the Governor to use the budgeting process as leverage to bully the courts to rule in a way the Governor will approve, and to pressure the judiciary to refrain from exercising independence in ful?lling its constitutional role as a check on the powers of the legislative and executive branches?? 3. The line-item veto based on a disagreement with the Supreme Court?s decision demonstrates incompetence and neglect of duties. The Governor?s veto message, explaining why he struck $334,700 from the appellate courts? budget, rests on a ?atly wrong characterization of the Planned ?3 1n speaking recently at the Alaska Federation of Natives convention, Chief Justice Bolger emphasized the importance of preserving an independent judiciary. See Alex DeMarban, Alaska Supreme Court chief justice asks AFN to keep poiities out of the judiciary, ANCHORAGE DAILY (NEWS, Oct. 19, 2019, Sfalaska-suprcme-court-chief- udiciaryt. ?It?s absoiutely essential that judges maintain independence to make decisions based on the law and facts and not on political or personal considerations." Id. Chief Justice Bolger deplored the ?great deal of political pressure" fthat the court system is receiving, and cited as one example that some people ?would like to impose political consequences for the content of judicial decisions." 1d. Motion for Summary Judgment Recoil Denim v. State ofAiaska. Division of Elections Page 38 of 55 Case No. 9-10903CI Exhibit A Page 24 of 41 Wm 274-0666 AK. weal-m 110me &Bmcowr,PC 70! Parenthood decision. The Court explicitly did not require funding for any ?elective abortions?; the decision unequivocally addresses funding only for medically necessary abortions)? The Court did nothing to undermine the executive and legislative branches? opposition to funding elective abortinns.145 if the Governor contends that he nus-described the Supreme Court decision out of ignorance, rather than willfully this-describing its holding, that would demonstrate hicompetence?an inability to perform his duties. To ful?ll his constitutionally-assigned role of enforcing the law, the Governor must understand the law. If he honestly did not understand the Planned Parenthood decisions, despite having access to an entire Department of Law that can explain judicial rulings to him, then the Governor is incompetent to perform the duties of his of?ce. Acting out of ignorance also demonstrates neglect of duties. To exercise his line- item veto authority consistent with his of?cial duties, the Governor has a duty to act with reasonable care. That means he must take the time to understand what he is doing. If he vetoed $334,700 from the court system budget based on a misunderstanding of a S_upreme Court decision, this demonstrates a clear neglect of duties. Attorney General Clarkson?s opinion recommends against certification of the recall application based on this allegation. In the Attorney General?s view, there is essentially no 1? See State v. Planned Parenthood of the Great MM, 436 P.3d 984, 1001-05 (Alaska 2019). ?5 The 2001 decision, which prompted the 2013 regulation and 2014 statute that rede?ned ??nedically necessary" for purposes of abortions, also only addressed medically necessary abortions. See State, Dep ?t of Health Soc. Servs. Planned Parenthood of A laska. Inn, 28 P.3d 904, 905 (Alaska 2001) ("This case concerns the State's denial of public assistance to eligible women whose health is in danger. It does not concern State paymentfor electige abortions[ Motion for Summary Judgment Recall Dunleaior v. State ofAlaska. Dinner: of Elections Page 39 ?f 55 Case No. Exhibit A Page 25 of 41 701 WESTEIGHIHAWSUHEM 99501-3403 HOMES WEDDLE 8: limit on the Governor?s line-item veto power.? This is wrong. While the Governor?s power is broad, it is not unlimited. A simple analogy can be drawn to the right of an employer to terminate an at-will employee. Such an employer may ?re the employee for almost any reason except for an unconstitutional reason. The same is true with the Governor. His discretion to reduce the judiciary's budget may be exercised for any reason except an unconstitutional reason or a reason that displays a refusal to accept the checks and balances of our three equal branches chow/eminent?? The Governor left no doubt why he reduced the appellate courts? budget as he did. His message of disagreement with the Supreme Court?s decision was precisely the point of the line-item veto. Because the Governor unambiguously used the line-item veto to attack the judiciary for perfomiing its constitutional duty, the recall application states a legally suf?cient ground for recall as a display of un?tness for of?ce, neglect of duty, and/or incompetence. D. The Allegation That Governor Dunleavy Violated Separation-0f- Powers By Improperly Using The Line-Item Veto To Preclude The Legislature From Upholding Its Constitutional Health, Education, And Welfare Responsibilities States A Legally Suf?cient Ground For Recall. 1. Factual basis for this claim After the legislature completed its annual budget process, Governor Dunleavy exercised his line-item veto power for FY 2020 on June 28, 2019]? The scope of ?5 See Att?y Gen. Clarimon Op. at 22-23 (Exhibit 2). See Thomas v. Rose?, 569 P.2d 792, 795 (Alaska 1975) (discussing the improper exercise of the line-item veto power as a violation of separation of powers). us See Press Release, Governor Michael J. Dunleavy, Dunleavy Serious About Balancing Budget, [Eliminates 50 Percent of {State De?cit (June ?28, 2019), Motion for Judgment Recall Dunlemaz v. State ofAlaska. Division ofEIecrians Page 40 of 55 Case No. Exhibit A Page 26 of 4] HOLMES WEDDLE 8: 3m. PC 701 Governor Dunleavy?s budget vetoes was substantial; he vetoed approximately $440 million, on top of $270 million in cuts already included in the appropriations bill.?9 Combined, the budget constituted a ?nearly $680 million? reduction in sta_te spending, representing more than 12% in overall cuts.15? Governor Dunleavy vetoed 182 speci?c programs to achieve these reductions.151 With respect to health} Governor Dunleavy vetoed (at least ?2 million in Medicaid nines)? He also eliminated adult dental Medicaid bene?ts by ve_t0_ing $22 million more for that program?? And he vetoed over $6 million in behavioral health treatment and recovery grants.'55 With respect to education, Governor Dunleavy vetoed more than $130 million from the University of Alaska, over 44% of its state support.?56 He reduced the state?s school bond debt reimbursement?the state?s payments for education bonds-why 50% (nearly $49 million)?; Governor Dunleavy also completely eliminated pro-kindergarten funding (over $8.8 million] in the form of grants for Head Start, Parents as Teachers, Early STATE OF ALASKA, OFFICE or Mom. BUDGET, FISCAL YEAR 2'320 ENACTED BUDGET (June 28, 201 9) (updated June 15, 2019), 1 5-1 9.1de (showing $434,6l 5 million in total ?veto actions"). 150 M. See JUNE VETO CHANGE RECORD DETAILS. ?52 See in?'a Section IllE at 48-53. Ill ?3 JUNE Varo CHANGE. Recent) DETAILS 49. Seerd. at 121. ?57 at 137. Motion for Sumary Judgment Recall Dunlemy v. State of Alaska. Division of Elections Page 41 0f 55 Case No. SAN-194090301 Exhibit A Page 27 of 41 7'01 Honma Wanna Baaoo'rr, PC Childhood, and Best Beginnings.?a And he eliminated funding To: the Online With Libraries and Live Homework Help programs, which provide internet access to rural Alaskan schools as well as online tutoring services.?? With respect to welfare, Governor Dunleavy vetoed over $21 million to eliminate the senior bene?ts payment program, which provides assistance to low-income seniors)? He vetoed $3 million in Village Public Safety Officer (VPSO) funding.?3? Governor Dunleavy also eliminated ?mds million} for a youth detention and treatment facility in Nome.162 And he vetoed over $750,000 for Alaska Legal Services Corporation'63?4he equivalent of all funding to assist victims of domestic violence?and over $575,000 for the Public Defender Agency)? two organizations that provide legal services to low-income- Alaskans. A?er failing to override Governor Dunleavy's vetoes in a 37-1 the legislature passed a new $375 million bill to restore most of the vetoed ?3 Id. at 19. 1? 1d. $28-29, 1d. at 55; STATE or ALASKA, OFFICE or- Mom. BUDGET, FY2019 SUPPLEMENTAL Varoas at 3 (June 28, 2019). :Ilombalaska. govfomb?lesfm 201 9_Supplemental_Vetoes_6-23- 9.pdf. JUNE Elem CHANGE RECORD DETAILS 16?4 Id. at 7. "5 Alaska Const. art. ll, 16 (?Bills to raise revenue and appropriation bills or items, although vetoed, become law by af?rmative vote of three-fourths of the membership of the legislature?). The remaining 22 legislators were in Wasilla, not Juneau, for the vote. Motion for Summary Judgment Recall Dunlemy v. State ofAlaska. Damon ofEiections Page 42 0f 55 Case No. 9-1 090301 Exhibit A Page 28 of 41 .PC r01 mam AVENUE. SIRE 700 99501-3? HOLMES WEDDLE an funds)? Recall Dunleavy began gathering signatures for its recall application on August I, 2019, with the application language at issue in this case. Governor Dunleavy exercised his line-item veto power on the second appropriations bill on August 19, 2019?" His second wave or line-item vetoes reduced the new appropriations bill by $339 million."53 is to certain programs, Governor Dunleavy reversed course and allowed the reinstated funding to stand.'69 Included in this reversal were: (1) $110 million of previously-vetoed ?mds for the University of Alaska; (2) over $21 million for the senior bene?ts program; nearly $9 million in grants for early childhood education; (4) funds to continue the OWL and Live Homework Help programsnand (5) over $750 thousand for Alaska Legal Services Corporation.?? 1? See Press Release, Governor Michael 1. Dunleavy, Governor Dunleavy Announces Final Piece. of FY20 Budget (Aug. 19, 201 9), 9108/ See id. 1?3 59913. STATE or ALASKA, OFFICE or Mom. BUDGET, House BILL 2001 FY2020 ITEMS, PRESS BRIEFING - ITEMS or lmassr (Aug. 19, 2019), -19-19.pd? Although Governor Dunleavy characterized this reversal as a situation where he ?restored? funding for certain programs, the legislature is the branch of government which actually? ?lmed funding for these pregame . 1d. Motion for Summary Judgment Recall Dunleavy v. State of Alaska. Division of Elections Page 43 of 55 Case No. SAN-19409030 Exhibit A Page 29 of 41 70! macaw AVENUE. SW5 7% 995mm racsmummw HOW WEDDLB 2. Governor Dunleavy?s line-item vetoes constitute neglect of duties. The Alaska Constitution, unlike the United States Constitution, provides af?rmative rights to its citizens in the areas of health,?' education,?? and welfare.?? Although the exact contours of these rights have not been completely de?ned by the Alaska Supreme Court,?" it is clear that some level of ?minimal adequacy? is required. '75 The legislature has the power to appropriate funds, and, although the Governor has the power to reduce those funds through a line-item veto, the Govemor?s line-item veto authority is not absolute.?? For example, a Governor cannot veto intent language, because that would unconstitutionally infringe on the legislature?s appropriation power."" And the Alaska Const. art. VII, 4 ("The legislature shall provide for the promotion and protection of public In Alaska Const. art. Vii, 1 (?The legislature shall by general law establish and maintain a system of public schools open to all children of the State . . . ?3 Alaska Const. art. VII, 5 (?The legislature shall provide for public welfare"). 114 See State v. Ketchikan Gateway Borough, 366 P.3d 86, 103 (Alaska 2016) (Win?ee, ., concurring) VII, section 1?s mandate . . . ?imposes a [constitutional] duty upon the state legislattne, and it confers upon Alaska school age children a [constitutional] right to education.? (third and fourth alterations in original) (quoting Hootch v. Alaska State-Operated Sch. 536 P.2d 793, 799 (Alaska 1975)?. ?5 Matanuska-Susitna Borough Sch. Dist, 931 P.2d 391, 405 (Alaska 1997) (Matthews, 1., joined by Rabinowitz, ., concurring); see also Daan Brave-man, Children, Poverty and State Constitutions, 38 EMORY LJ. 577, 596 (1989) (?[Scme constitutions] include[] provisions that do not merely authorize the state to provide for the poor, but instead refer to a governmental obligation to care for the needy or protect the health of all citizens. . . . The Alaska Constitution states simply but clearly that the legislature ?shall provide for public welfare.? (quoting Alaska Const. art. VII, William C. Rava, State Constitutional Protections for the Poor, 71 TEMP. L. REV. 543, 557 (1998) (?The Alaska Constitution directs the legislature to provide for public welfare, without de?ning either what assistance is necessary to meet this command or who should get the assistance. Something, however, is required." (footnote omitted?. ?5 See Alaska Legislative Council v. Knowles, 21 P.3d 367, 371 (Alaska 2001) (citing Alaska Const. art. it, 13, 15). 117 See id. at 371-73. Motion for Summary Judgment Recall DunIemry v. State of Alaska, Division ofElecn'ons Page 4?4 055 Case No. Exhibit A Page 30 of 4] 701 AVENUE. SUITE 2'00 ANCHORAGE. Alt 99501-3400 HOLMES WEDDLE 85 line-item veto power cannot be used to violate the separation of powers,? or irnpermissibly encroach on a constitutionally-mandated legislative appropriation}?9 Because the legislature has a constitutional duty to provide for the health, education, and welfare of Alaska?s citizens,'3? the Governor cannot constitutionally wield his veto power to preclude the legislature from ful?lling that duty. These constitutional provisions cannot be meaningless; there must be some legislative obligation to provide for health, education, and welfare that mandates a certain level of ?mding and support. For example, the Governor could not veto the entire budget for the Department of Public Safety without interfering with the legislature?s constitutional duty to provide for the welfare of all Alaskans. Although the entire DPS budget was not vetoed, the voters could ?nd that the Governor's sweeping vetoes decimated so many important programs as to rise to the ?3 Thomas v. Rosen, 569 P.2d 793, 795 (Alaska 1977) (characterizing a decision regarding the Governor?s line-item veto power as a ?great constitutional moment" which ?pits the political branches of our state government in a fundamental separation of powers confrontation"). ?9 See Simpson v. Murkowski, 129 P.3d 435, 44? (Alaska 2006) (recognizing ?the tension ?between a desire to prevent legislatures from using appropriation bills to make programmatic changes . . . and the realization that legislatures do not have to ?md or fully fund any program (except, possibly, constitutionally mandated programs)? (?rst alteration in original) (emphasis added) (quoting Alaska Legislative Council, 21 P.3d at 378)). Alaska Const. art. Vll, l, 4, 5; Saber v. Alaska State Bond Comm, 414 P.2d 546, 552 (Alaska 1966) (?Relief and support of the poor has long been recognized as an obligation of government and a public purpose.? (citing Carmichael v. S. Coal Coke 00., 301 U.S. 495, 515 (1937); Roe v. Kerviclc, 199 A.2d 834, 846 (NJ. 1964?); see Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 386 (Alaska 2013) (?We presume that [the constitutional convention delegates] ?intended every word, sentence or provision . . . to have some purpose, force, and effect, and that no words or provisions are super?uous.? (quoting Stare, Dep ?r ofCommerce, Cmty. Econ. Dev. v. Progressive Cas. Ins. Co. 165 P.3d 624, 629 (Alaska 2007)?; see also Wielechowski v. State, 403 P.3d 1141, 1146 (Alaska 2017) (?Our analysis of a constitutional provision begins with, and remains grounded in, the words of the provision itself. We are not vested with the authority to add missing terms or hypothesize differently worded provisions .. . to reach a particular result." (alteration in original) (quoting Hicks! v. Cowper, 874 P.2d 922, 927-28 (Alaska 1994?). Motion for Summary Judgment Recall Dunleaw v. State of Alaska. Division of Elections Page 45 Of? Case No. BAN-194 Exhibit A Page 31 of 41 701 acme Am SM 700 mow: non var-om rams non 2774.55: Homes level of threatening the legislahne?s af?rmative obligations to provide for the health, education, and welfare of all Alaskans. In severely impairing the legislature?s efforts to ful?ll its constitutional responsibilities, the Governor went beyond the legitimate exercise of his veto power and breached his duty to respect the legislature?s role to fund core government services. 3. Governor Dunleavy?s line-item vetoes demonstrate lack of ?tness and incompetence. Governor Dunleavy?s far-reaching, devastating vetoes in June also displayed his lack of ?tness for of?ce and his incompetence. Both are evidenced by his second round of vetoes in August, and the accompanying press release, where he reversed course and permitted the restoration of $156 million in funds."n Governor Dunleavy repeatedly characterized his June vetoes as merely having started a ?conversation,? implying that he never intended to follow through and that the ?conversations" that changed hisnnind could not have happened without the vetoes,?82 By waiting to analyze or discuss the effect of his planned vetoes until after they were made, Governor Dunleavy displayed his for his of?ce and his failure to function as an effective leader. The Governor acted before he listened or understood the impact of his actions. Treating his ?rst round of vetoes as a ?conversation starter" demonstrates a lack of ?tness and a level of incompetence suf?cient to be a valid ground See Press Release, Governor Michael J. Dunleavy, Governor Dunleavy Announces Final Piece of FY20 Budget (Aug. 1 9, 2019), 9/08! 1 "2 See id. Motion for Summary Judgment Recall Dunleavy v. State ofAlaska, Di?sr?on of Elections 46 0f 55 Case No. Exhibit A Page 32 of 4] ANCHORAGE. M2 99501-3? [907] 2740666 FACSNIE {907} HOIMES WEDDLE PC 70! WESIEEHTH AVENUE. mm for recall. After all, if the legislature had not cleaned up his mess by restoring vetoed funds, he never would have had a chance to ?allow" those restorations to stand. would .have suffered?some could have perished?4]] for the sake of the Governor?s ?conversation." Because the voters could ?nd that Governor Dunleavy is unsuited for of?ce and incompetent in how he went about exercising his veto power in June, Plaintiff has articulated valid grounds for recall under the lack of ?tness and incompetence prongs. The Attorney General?s recommendation has two responses to this allegation that apply to all grounds for First, he asserts that this allegation is too vague and fails to state a ground with suf?cient particularity that the Governor could respond But there is no question that the Governor should understand the allegation to be that his vetoes went so far as to interfere with the legislature?s constitutional duties to provide for health, education, and welfare. The Attorney General seems to suggest that Plaintiff needed to identify particular cuts. The allegation, however, is that his vetoean rota! went so far as to violate the Alaska Constitution. The Governor has suf?cient notice of this ground. Second, the Attorney General asserts that the Governor?s vetoes are purely discretionary policy choices and that there is no constitutional limit whatsoever to his veto power. This is simply not true. As outlined in detail above, the line-item veto power cannot '33 See Att?y Gen. Clarkson Op. at 22-23 (Exhibit 2). "4 See id. (Exhibit 2). Motion for Summary Judgment Recall Dunleavy v. State ofAiaska, Division of Electiom Page 47 0f 55 Case No. 9-10903CI Exhibit A Page 33 of 41 EM {9071 274-06? 277-4657 WAS 995mm HOW WEDDLE Banoo'rr. PC 701 be used to violate the separation of powers,'85 or impermissibly encroach on a constitutionally-mandated legislative appropriation.?6 In deciding whether there is a permissible ground for recall, this court does not need to decide whether Governor Dunleavy?s vetoes actually violated separation of powers by treading on the legislature?s af?rmative duties to provide for the health, education, and welfare of Alaskans. This court must instead determine whether, assuming all of the facts alleged are true, a valid legal claim is stated)? It is for the voters to decide whether the Governor?s vetoes interfered with the legislature's constitutional duty to fund education, health, and welfare of Alaskans. The application articulated a valid legal ground for recall. E. The Allegation That Governor Dunleavy Acted Incompetently When He Mistakenly Vetoed $18 Million More Than He Intended To Strike States A Legally Suf?cient Ground For Recall. 1. Factual basis for this claim Governor Dunleavy vetoed approximately $440 million on June 28, 2012,13? included were two multi-million dollar cuts to Medicaid?a surprise to his own See Thomas, 569 P.2d at 795. ?5 See Simpson, 129 P.3d at 447. 1" Hefner-s v. Bering Strait Sch. Dist, 687 P.2d 28?, 301 (Alaska 1984) (?if the [recall] petition alleges violation of totally non-existent laws, then it would not allege failure to perform prescribed duties. But . . . [w]here the petition merely characterizes the law in a way different than the of?cial (or his or her attorney) would prefer, he or she has an opportunity to put his or her rebuttal before the voters, alongside the charges contained in the petition"). F38 See Press Release, Governor Michael J. Dunleavy, Dunleavy Serious About Balancing ?Budget, Eliminates 50 Percent of ?State De?cit. (June 28, '2019), Excerpts from Af?davit of Donna Steward, Deputy Comm?r, Medicaid St Health Care Policy, Alaska Dep?t of Health Soc. Sen/5., 122 (Aug. 2, 2019) [hereinafter Donna Steward Aft] (?The department was unaware that the governor would be reducing the Medicaid budget by an additional $50 million when these regulations were adopted [on the same day as the vetoes]. Motion for Summary Judgment Recall Dunlemgr v. State ofAiaska, DMsion ofEiecrr'ons Page 43 0f 55 Case No. Exhibit A Page 34 of 41 IEEPHONE 274-0666 FACSMLE [907'] 277-465? 70! WESTEKEHTHAVENUE. 51mm ANCHORAGE AK 99501-3? HOLMES WEDDLE which Governor Dunleavy thought totaledjust over $77 million.190 He vetoed $50 million as part of a general Medicaid services reduction,?1 and vetoed an additional (roughly) $27 million with the intent to eliminate adult dental Medicaid benefits.-192 These Sped?c numbers were included in Governor Dunleavy?s Veto Change Record of Details,??3 as well as in his Veto Summary/.194 But Governor Dunleavy actually vetoed signi?cantly more Medicaid fluids than he intended. Medicaid appropriations in the state?s budget include monies in the state?s general ?uid and also federal dollais that the state expects to receive for this federal program?-5 State Medieaid funds are matched by the federal government at varying rates.??5 Therefore, an understanding of the federal matching rate in a speci?c area of Medicaid spending is required to achieve an overall desired reduction in state Medicaid spending. The additional cuts to Medicaid due to the governor?s vetoes on July 28, 2019, are currently being evaluated") (Exhibit 15). 9" See JUNE CHANGE RECORD DETAILS at 60-6160-61. STATE or ALASKA. OFFICE OF MGMT. BUDGET, VETO sum-Inuit at 5 (June 28, 2019) [hereinafter JUNE Vere 19.pdf. ?95 See Hearing on Budget and Fiscal Review and Updates Before S. Fin. Comm, 3 1 st Leg, 2d Spec. Sess. '0914l:55-09:43:03 (July 9, David Teal Testimony], (testimony of David Teal, Director of Legislative Finance). See Donna Steward Aff. an] 18 (?The Medicaid program is a joint federaUstate program that requires funding from both parties. The general split of funding is 50/50 but depending on the recipient or services provided, more funding may be available from the federal side, that is. more federal money is allocated to split than state dollars") (Exhibit 15). Motion for Summary Judgment Recall Dunlemy v. State ofAlaska, Division ofElecn?ons 49 0f 55 Case No. Exhibit A Page 35 of 41 70] W61 AVENUE. SUITE 700 ANCHORAGE. AK moors {907} 274-0066 FACSMLE {907} 277465? HOW WEDDLE 8r. There is no question that Governor Dunieavy wanted to eliminate adult dental Medicaid bene?ts in Alaska?? Two of his veto budget documents correctly accounted for the two?to-one federal match for that service.?93 But his actual veto did not.? To achieve an overall reduction of $27,004,500 to eliminate the program, Govemnr Dunleavy should have vetoed $8,273,600 in state ?mds and $18,730,900 in federal ?mds to achieve his stated intent.299 "But instead of vetoing $8,273,600 in state funds to achieve an overall reduction of $27,004,500 in Medicaid funds, Governor Dunleavy vetoed $27,004,500 in state funds.201 This means Governor Dunleavy vetoed over $18.7 million in state Medicaid funds beyond what he needed'to eliminate adult dental benefits.202 Because line-item vetoes are binding unless overridden,203 Governor Dunleavy?s uncorrected mistake would, have caused the state to lose an additional million in state Medicaid dollars?as well as a substantial, unknown amount of federally-matched dollars?~if he had not been given a second chance to address this veto. Conservative estimates put that additional loss of federal ?tnds at ?97 JUNE VETO CHANGE RECORD DETAILS at 61; JUNE Varo SUMMARY at s. JUNE Vere CHANGE RECORD DETAILS at 61; JUNE VE'ro SUMMARY 20-21, 2019 (as amended) (Exhibit 16). 20? JUNE V1310 CHANGE RECORD DETAILS at 61; JUNE SUMMARY at 5. Ch. 1, 1, at 20-21, ISSLA 2019 (as amended) (Exhibit 16). 202 See David Teal Testimony, supra note 195. See Wielechowski v. State, 403 P.3d 1141, 1152-53 (Alaska 2017) (looking to the enacted appropriations bill, as amended, to detennine line-item vetoes). Motion for Summary Judgment Recall Dunfeavy v. State of Alaska. Division of Elections Page 50 of 55 Case No. 9-10903CI Exhibit A Page 36 of 4] Houses Waterman roughly $40 million,? the equivalent of over 10,000 Alaskans completely losing their Medicaid bene?ts?? Luckily for Alaska?s Medicaid recipients, the legislature gave the Governor the opporttmity to correct his error. In a special session, the legislature restored Medicaid funding for adult dental bene?ts, which put this issue before the Governor a second time. Responding to the second appropriations bill, Governor Dnnleavy vetoed the correct $8,273,600 in state funds to achieve his stated desired goal of eliminating the program on August 19, 2019.296 In a explanation, Governor Dunleavy admitted that he kept ?$18,730,900 in [state] general ?mds that . . . [he] never intended to be vetoed? back in June?? 2. Governor Dunleavy?s mistaken Medicaid veto demonstrated incompetence. Governor Dunleavy?s mistaken veto of over million in federally-matched state Medicaid funds is a clear demonstration of incompetence. And the mistake was not See cf EVERGREEN Boone, FORECAST or MEDICAID ENROLLMENT AND SPENDING IN ALASKA: FY2019-FY2039, at 6 (Sept. 25, 2018) [hereinafter EVERGREEN (?project[ing] federal participation will be approximately 67 percent [(showing the average Medicaid enrollee receives care costing just under $10,000 per year in Alaska). In other words, a $40 million loss in ?mds would remove funding equivalent to the amount necessary to cover roughly 4% of Alaska?s currently-enrolled Medicaid populationZSSLA 2019 (as amended) (Exhibit 17). 20" See STATE or ALASKA, OFFICE or Mom. BUDGET, HB 2001 FY20 POST-VETO CHANGE. RECORD Damn. at 27 (Aug. 19, 2019) [hereinafter AUGUST VETO CHANGE RECORD 9- advice from [the] Department of Law, . . . have. . . maintain[?] the $18,730,900 in general funds that were never intended to be vetoed . . . (Exhibit 18)2 Motion for Summary Judgment Recall Dunleavy v. State of Alaska, Divin?an of Elections Page 51 0f 55 Case No. 9-10903Cl Exhibit A Page 37 of 41 name {9071 27m ?emu 277-4657 Home Wanna: 8r. Eamon: PC 70] war noun: AVBILE. SUITE mo ANCHORAGE. AK neat-m trivial; the impacts of this multimillion-dollar mistake could have been devastating to the more than 10,000 Alaskans who might not have been able to obtain Medicaid bene?ts.203 Governor Dunleavy has attempted to downplay this grievous mistake by refusing to directly admit to it?? But Governor Dunleavy did make this mistake, shown by his own admission)? and by his leaving the correct amount of previously-vetoed funds in subsequent appropriations bill?? His multimillion-dollar mistake shows an ?[in]ability to perform . . . required duties,?212 and is thus a demonstration of incompetence sufficient to establish a ground for recall. 3. Governor Dunleavy?s mistaken Medicaid veto demonstrated lack of ?tness and neglect of duty. Governor Dunleavy?s mistaken Medicaid veto also establishes that be neglected to perform his duty as Alaska?s chief executive, and it demonstrates lack of ?tness through his inappropriate, uninformed behavior. DHSS, a department within his own administration, was blindsided by Governor Dunleavy?s extensive Medicaid vetoes.213 Governor Dunleavy easily could have avoided his error if he had consulted with DHSS before making his line-item vetoes. An executive who makes such dramatic funding II choices, without consulting impacted agencies?and without considering the impact to tens See EVERGREEN Econs. at 2, 5, 16, 25. See AUGUST Varo CHANGE RECORD Damn. at 27 {Exhibit l'ti). See id. (?[11me advice from [the] Department of Law, . . . have . . . maintainled] the in general funds that were never intended to be vetoed . . . (Exhibit 13). 2? 54,2, 1, at 5. 2551A 2019 (as amended) {Exhibit 11}. 212 See v. Rollins, Memorandum Decision, 4FA-92-01728CI, at 23 (Alaska Super. Sept. 14, 1993) (?hteompetenee for purposes of recall must relate to a lack of ability to perform the oi?cial?s required duties?) (Appendix D). 2'3 See Donna Steward Aff. mi 22 (Exhibit 15}. Motion for Summary Judgment Remit Dunleavy v. State of Alaska. Division of Electiom Page 52 0f 55 Case No. Exhibit A Page 38 of 41 [907'] 274-0666 PAM {9071 277-4657 Houses Wham Barrow-r. PC 7m Kit-I'm AVENIE. SUITE 700 ANCHORAGE M: ?sol-am of thousands of Alaskans?acts inappropriately and is incompetent and un?t for the of?ce. The application states suf?cient legal grounds of neglect of duties, incompetence, and lack of ?tness based on the mistaken Medicaid veto. The Attorney General?s recommendation against certi?cation concedes the Governor?s mistake, but calls it a ?scrivener's error? without legal impact?? But there is no ?scrivener?s error? exception to any of the statutory grounds for recall. Recall Dunleavy has therefore made a prima facie case of incompetence. The Governor may make the arguments that the Attorney General advances as part of his rebuttal, but the availability of defenses does not mean the recall application fails to state a valid ground. IV. CONCLUSION Because the power to recall public of?cials is ?mdamentally a part of our political process, the ?statutes relating to . . . recall, like those relating to the initiative and referendum, ?should be liberally construed so that ?the people [are] permitted to vote and express their will . . . ?2'5 Attorney General Clarkson's recommendation resulting in the rejection of Recall Dunleavy?s application is a textbook example of how to create ?arti?cial technical hurdles? designed to stymie the recall process.?6 Ignoring case law, prior Attorney General opinions addressing recalls, and the Alaska Supreme Court?s direction to liberally construe recall statutes, Attorney General Clarkson unlawfully 3" See Att?y Gen. Clarkson 0p. at 23-25 (Exhibit 2). 2?5 Meiners v. Bering Strait Sch. Dan, 68? P.2d 287, 296 (Alaska 1934) (second and third alterations in original) (quoting Boucher v. 528 P.2d 456, 462 (Alaska 1974)). 2?5 Id. (citing Hazelwood v. Saul, 619 P.2d 499, 500-01 (Colo. 1980); Westpy v. Burnett, 197 A.2d 400, 404 (NJ. Super. Ct. App. Div. 1964)). Motion for Summary Judgment Recall Dunleavy v. State afAlaska, Division of Elections Page 53 Of 55 Case No. 3AN-19-10903CI Exhibit A Page 39 of 41 .PC 70] WMAVEHUE. Sll'lEm ANCHORAGE. M: 99501-3? HOIMES WEDDIE recommended denying the application by ratcheting up and narrowing the meanings of the grounds?lack of ?tness, incompetence, and neglect of duties?as well as the requirement that the grounds be ?described in particular in not more than 200 words?? If this administration sees ?t to change recall law, it can seek a legislative change. But as with initiatives, ?the Sponsors . . . have relied on [court] precedents in preparing the present [application] and undertaking the considerable expense and time and effort needed to place it on the Defendants cannot be allowed to defeat the recall by changing the rules of the game after the application was submitted. Each of the ?ve allegations in the recall application states three legally suf?cient grounds for recall of Governor Dunleavy: lack of ?tness, incompetence, and neglect of duties. So long as an allegation meets one of these three grounds, it is properly included in the application. Upon completion of the review for legal suf?ciency, this court should certify the recall application as submitted, and order the immediate distribution of recall petition booklets to Recall Dunleavy. 2? 161311455000). 21? Yule Air Alaska. Inc. v. McAlpine, 698 P.2d 1173, 1130-31 (Alaska 1985). Motion for Summary Judgment Recall Dunleaw v. State ofA taska. Division of Elections P393 54 ?55 Case No. 3AN-1 9-1 0903CI Exhibit A Page 40 of 41 .PC HOLMES mmasraeamavazuamm RBSPECTFULLY SUBMITTED at Anchorage, Alaska this 7/3 day ofNovembcr 2019. Iherebycertifythatonthis El dayof November 2019, a true and correct copy of the foregoing was sent to the following via 1.1.8. Mail and Email: Margaret Paton-Walsh Attorney General?a Of?ce 1031 W. 4th Avenue, Suite 200 Anchorage, AK 99501 Brewster H. Jamieeon Michael B. Baylous Lane Powell LLC 1600 A Street, Ste 304 Anchorage, AK 99501 . . @1 1} MW rimFon Motion for Summary Judgment Recall Dunleaw v. State of A Iaska, Division of Elections Case No. HOLMES WEDDLE BARCOTT, PC retina M. Lindemuth Alaska Bar No. 971 1068 Scott M. Kendall Alaska Bar No. 0405019 Samuel G. Gottstein Alaska Bar No. 1511099 SUMMIT LAW GROUP Jeffrey M. Feldman Alaska Bar No. 7605029 REEVES AMODIO Susan Orlansky Alaska Bar No. 8106042 Attorneys for Plaintiff Recall Dunleavy Craig Richards Law Of?ce of Craig Richards 810 Street, Ste 100 Anchorage, AK 99501 ?aws?. Page 55 of 55 Exhibit A Page 41 of 41