In the Supreme Court of the State of Alaska
State of Alaska, Division of Elections,
Director Gail Fenumiai, and Stand
Tall With Mike,
Appellants,

Supreme Court No. S-17706/S-17715

v.

Order
Motion to Lift Stay Pending Appeal
Date of Order: February 14, 2020

Recall Dunleavy,
Appellee.
Trial Court Case No. 3AN-19-10903CI
Before:

Bolger, Chief Justice, Winfree, Stowers, Maassen, and
Carney, Justices

On February 3, 2020, Appellee Recall Dunleavy filed an Emergency
Motion to Lift Stay Pending Appeal, asking us to lift the superior court’s January 29
Order Granting Stay Pending Expedited Appeal. Appellants State of Alaska, Division
of Elections, Gail Fenumiai, Director, State of Alaska, Division of Elections, and Stand
Tall with Mike filed responses on February 7.
The superior court, in its order granting the stay, concluded that to allow
signature-gathering to proceed pending appeal could result in voter confusion if this
court reverses or modifies its judgment; that this confusion could not easily be remedied
and therefore constituted irreparable harm; and that the State and Stand Tall with Mike
raise a serious issue on appeal. However, the superior court did not expressly consider
the harm to Recall Dunleavy resulting from a stay, and as a result it appears to have
applied an incorrect analysis.
“Where the injury which will result from the [stay] is not inconsiderable
and may not be adequately indemnified by a bond, a showing of probable success on the

 State, Div. of Elections, et al. v. Recall Dunleavy
No. S-17706/S-17715
Order dated February 14, 2020
Page 2
merits is required.”1 When assessing the harm to the non-moving party we assume that
it will prevail on appeal.2 The statutes governing recall elections impose certain
deadlines apparently intended to ensure an expedited process. The loss of several
months of signature-gathering in this process is at least a “not inconsiderable” injury.
In order to obtain a stay, therefore, Stand Tall with Mike was required to show not just
the existence of serious issues on appeal, but probable success on the merits. Having
granted summary judgment to Recall Dunleavy, the superior court implicitly rejected the
argument that Stand Tall with Mike will probably succeed on the merits of its appeal.
We conclude that it has not made that showing here, either, in its response to Recall
Dunleavy’s Motion to Lift Stay.
Therefore, on consideration of the Motion to Lift Stay and the responses:
IT IS ORDERED that the Motion to Lift Stay Pending Appeal is
GRANTED. The Division of Elections is directed to prepare the petition booklets
forthwith for issuance to Recall Dunleavy. Requests related to the execution of this order
shall be directed in the first instance to the superior court.
A separate notice regarding the briefing scheduling in this appeal will be
issued after the Clerk’s scheduling conference with the parties.
Entered at the direction of the court.

1

Alsworth v. Seybert, 323 P.3d 47, 54-55 (Alaska 2014).

2

Id. at 54.

 State, Div. of Elections, et al. v. Recall Dunleavy
Supreme Court No. S-17706/S-17715
Order dated February 14, 2020
Page 3
Clerk of the Appellate Courts

________________________________
Meredith Montgomery
cc:

Supreme Court Justices
Judge Aarseth

Distribution:
Mail:
Paton-Walsh, Margaret
Lindemuth, Jahna M.
Kendall, Scott M.
Gottstein, Samuel Gekler
Orlansky, Susan C.
Feldman, Jeffrey M.
Jamieson, Brewster H.
Baylous, Michael Bruce
Richards, Craig

Email:
Paton-Walsh, Margaret
Lindemuth, Jahna M.
Kendall, Scott M.
Gottstein, Samuel Gekler
Orlansky, Susan C.
Feldman, Jeffrey M.
Jamieson, Brewster H.
Baylous, Michael Bruce
Richards, Craig